GENERAL TERMS AND CONDITIONS
of the enterprises affiliated with the Dutch Society of Entrepreneurs in the Thermal Insulation Company VIB (de Nederlandse Vereniging van Ondernemers in het Thermisch isolatiebedrijf VIB), filed at the Office of the District Court in ’s Gravenhage on 28 May 2002 under number 63/2002
Article 1: Applicability
1.1. These conditions apply to all offers made by members of the VIB and to all agreements they conclude and to all agreements that may be the result thereof. The offeror/supplier is the VIB member who uses these conditions. Such member is designated in these conditions as the contractor or seller. The other party is designated as the customer or buyer.
1.2. These conditions may be used only by members of the VIB.
1.3. The standard conditions of the customer shall not apply and are expressly rejected.
Article 2: Offers / Conclusion of the agreement
2.1. A quotation by the contractor is an invitation to make an offer. However, should a quotation be deemed to be an offer, or regarded as such, it should be deemed to have been submitted without obligation, unless expressly agreed otherwise in writing.
2.2. An agreement shall be concluded between the contractor and the customer if and after the contractor has sent a written confirmation of the order given by the customer to the said customer, or if such multilateral legal act is evidenced in writing or if the work has actually commenced.
2.3. Amendments, alterations or (further) arrangements concerning the agreement as mentioned under paragraph 2 of this article made by whatever party shall be deemed to be part of this agreement only if they have been confirmed in writing to the customer by the competent authorities of the contractor.
2.4. If the customer provides the contractor with details, drawings etc., the contractor may rely on their correctness and he will found his quotation on the said details, drawings etc.
2.5. If his quotation is not accepted, the contractor shall be entitled to charge the customer all costs incurred to submit his quotation.
Article 3: Intellectual property rights
3.1. Unless agreed otherwise, the contractor retains the copyright and all industrial property rights in the offers made by him and in designs, illustrations, drawings, models, test models, software etc. supplied by him.
3.2. The rights to the data referred to in paragraph 1 shall remain the property of the contractor irrespective of whether costs are charged to the customer for their production. Such data may not be copied, used or shown to third parties without the express consent of the contractor. If this provision is infringed, the customer shall owe the contractor a penalty of € 25,000. This penalty may be claimed in addition to any compensation owed by law.
3.3. The customer must return the data supplied to him as referred to in paragraph 1 at the first request of the contractor within the period specified by the contractor. In the event of an infringement of this provision the customer shall owe the contractor a penalty of EUR 1,000 per day. This penalty may be claimed in addition to any compensation owed by law.
Article 4: Advice, designs and materials
4.1. The customer cannot derive any rights from advice and information obtained from the contractor if they do not relate directly to the order.
4.2. The customer is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of the materials prescribed by him or on his behalf.
4.3. The customer shall indemnify the contractor against any claim by its third parties relating to the use of drawings, calculations, samples, models and so forth supplied by or on behalf of the customer.
4.4. The customer may, at his own expense, examine (or arrange for the examination of) the materials which the contractor wishes to use before they are processed. If the contractor suffers damage as a result, this shall be borne by the customer.
Article 5: Delivery period
5.1. The delivery period stated by the contractor shall never be regarded as a firm date unless expressly agreed otherwise in writing.
5.2. In fixing the delivery period the contractor assumes that he can execute the order in the circumstances known to him at that time.
5.3. The delivery period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of the contractor, the agreed payment or instalment has been received and the necessary conditions for execution of the order have been fulfilled.
5.4. a. If circumstances occur other than those known to the contractor when he fixed the delivery period, the contractor may extend the delivery period by the time necessary to execute the order in the circumstances. If the work cannot be fitted into the planning schedule of the contractor, it shall be completed as soon as his planning schedule permits this.
b. If there is extra work, the delivery period shall be extended by the time that is necessary to supply (or arrange for the supply of) the materials and parts for this purpose and to carry out the additional work. If the extra work cannot be fitted into the planning schedule of the contractor, it shall be completed as soon as his planning schedule permits this.
c. If there is a suspension of obligations by the contractor, the delivery period shall be extended for the duration of the suspension. If continuation of the work cannot be fitted into the planning schedule of the contractor, the work shall be completed as soon as his planning schedule permits this.
d. If work is impossible owing to weather conditions, the delivery period shall be extended for the term of the delay that has occurred as a result.
Article 6: Delivery and Transmission of risk
Delivery of the materials shall take place free of charge on the means of transport on which the goods are transported to the destination as agreed. From that time, the customer shall bear the risk of the goods.
Article 7: Price / Price changes
7.1 The price to be charged by the contractor to the customer is based on the prices of materials, transport costs, wages, insurance premiums, fiscal charges, import duties, and other levies as well as other price-affecting factors that are in force on the date of the quotation.
7.2. If four months have passed since the date on which the agreement was concluded and its performance has not yet been completed by the contractor, an increase in the price determinants may be passed on to the customer.
7.3. Payment of the price increase as referred to in paragraph 1 shall take place together with payment of the principal or the last instalment.
7.4 If goods are supplied by the customer and the contractor is prepared to use them, the contractor may then charge a maximum of 20 percent of the market price of the delivered goods.
Article 8: Impossibility of performance
8.1 The contractor shall be entitled to suspend performance of his obligations if he is temporarily prevented from performing them by circumstances that could not be foreseen at the time of the conclusion of the agreement and which are beyond his control.
8.2 Circumstances which could not be foreseen by the contractor and which are beyond his control are deemed to include failure of his suppliers and/or subcontractors to fulfil their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import or trade restrictions.
8.3 Without prejudice to the stipulations in the preceding paragraphs of this article the contractor shall be entitled to demand payment from the customer for all work carried out by him for the execution of the agreement, before the situation as described in the previous paragraphs of this article has set in.
8.4 If the contractor is still unable to perform six months after he has suspended fulfilment of his obligation because of circumstances as mentioned in the previous paragraphs of this article, he is entitled to dissolve the agreement, or dissolve it in part, by means of sending the customer a written notification to this effect without being liable to pay any damages.
Article 9: Scope of the work
The contractor shall ensure that all licences, exemptions and other decisions that are necessary in order to carry out the work are obtained in good time.
Article 10: Alterations to the work
10.1. Alterations to the work shall result in any event in extra work or reduced work if: a. there is an alteration to the design or the specifications; b. the information provided by the customer does not correspond with the reality; c. the quantities diverge by more than 10% from the estimates.
10.2. Extra work shall be calculated on the basis of the value of the price determinants applicable at the time when the extra work is carried out. Reduced work shall be calculated on the basis of the value of the price determinants applicable at the time when the agreement was concluded.
10.3 If the increase and decrease in the work results on balance in a decrease the contractor may charge the customer in the final invoice 10% of the difference in the balances. This provision does not apply in the case of a reduction in the work that is a result of a request of the contractor.
10.4 In the event that any material necessary for the execution of the agreement is unavailable, the contractor is entitled to use a substitute in which case the customer will be notified in writing of this replacement.
Article 11: Execution of the work
11.1 During the execution of the agreement the customer must make available to the contractor for no consideration the necessary facilities, including power, light, scaffolds, compressed air as well as items as mentioned in the Working Conditions Act (ARBO-wet).
11.2. The customer shall guarantee unrestricted and undisturbed execution of the work by the contractor, by ensuring, among others, adequate access to the workplace as well as its suitability to stay there and the possibility of storing materials.
11.3. For any damage suffered because of non-compliance or poor compliance by the customer with the obligations as described in this article, the contractor shall be entitled to charge the customer, without prejudice to the contractor’s right to suspend his contractual obligations.
11.4. The customer shall be liable for all damage as a result of the loss, theft or burning of or damage to tools, materials and other property of the contractor located at the place where the work is performed.
Article 12: Completion of the work
12.1. The work shall be deemed to have been completed when: (a) the customer has approved the work;
(b) the work has been used by the customer; if the customer uses only part of the work, such part shall be deemed to have been completed;
(c) the contractor gives written notice to the customer that the work has been completed and the customer does not indicate in writing within 14 days of the notice whether or not the work has been approved;
(d) the customer does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the use of the work.
12.2. If the customer does not approve the work, he shall be obliged to give written notice of this to the contractor specifying the reasons.
12.3. If the customer does not approve the work he shall give the contractor the opportunity to complete the work anew. The provisions of this article shall then apply once again.
Article 13: Liability
13.1. The contractor is liable for damage which the customer suffers and which is the direct and sole result of a failure attributable to the contractor. However, only loss or damage for which the contractor is insured or for which he should reasonably have been insured will be eligible for compensation.
13.2. The following are not eligible for compensation:
(a) consequential loss or damage, including for example loss or damage due to business standstills and loss of profit;
(b) damage to goods which are being worked on or to goods which are in the vicinity of the place where the work is being carried out;
(c) damage caused by the intent or deliberate recklessness of auxiliaries.
13.3. The customer indemnifies the contractor against all claims of third parties on account of product liability due to a defect in a product which has been supplied by the customer to a third party and consisted wholly or partly in products and/or materials supplied by the contractor.
Article 14: Warranty
14.1. With due observance of the restrictions set out hereafter, the contractor shall guarantee good execution of the work, the soundness and quality of the goods delivered by him to such extent that the contractor shall repair free of charge all defects in goods delivered or work completed, for which the customer proves that these have arisen within twelve months of delivery or completion by the contractor, solely or predominantly as a direct consequence of an incorrectly executed construction by the contractor or defective mounting, or handling of poor material, which are not the result of a working method prescribed to the contractor by any statutory provision. Article 11 shall apply.
14.2. If the customer has given or recommended goods to the contractor for manufacturing or processing, the warranty as mentioned in the first paragraph of this article will only cover the soundness of the execution of the work commissioned.
14.3. The warranty for the customer on goods obtained by the contractor from a third party shall not exceed the warranty given by the said third party to the contractor.
14.4. If the contractor replaces goods in order to fulfil his guarantee obligations, the replaced goods shall be property of the contractor.
14.5. The customer shall not be entitled to suspend his obligation to the contractor or consider it cancelled by claiming alleged non-performance of guarantee obligations by the contractor.
14.6. The contractor is entitled to suspend performance of his guarantee obligations towards the customer if the customer fails to comply, comply properly or comply in good time with his obligation under the agreement, or any obligation under an agreement resulting in its turn from the said agreement.
14.7. The contractor shall also be entitled to suspend performance of his guarantee obligations towards the customer, if knowledge made known to him after the conclusion of the agreement, provide good reason for fearing that the customer will not observe his obligation towards the contractor.
14.8. If the contractor complies with his guarantee obligations outside the Netherlands with respect to work originally carried out in the Netherlands or goods originally delivered in the Netherlands, the contractor shall be entitled to charge to the customer the travelling and hotel expenses of persons directly involved with the work carried out under the guarantee, as well as transport expenses for the supply of the necessary goods.
14.9. The customer can only make a claim under the warranty after he has fulfilled all his obligations towards the contractor.
14.10 a. No warranty is given for defects that are a result of: - normal wear and tear; - injudicious use; - non-maintenance or defective maintenance; - installation, assembly, modification or repair by the customer or by third parties.
b. No warranty is given for delivered items of goods that were not new at the moment of delivery.
14.11 The total warranty costs shall never exceed the agreed price.
Article 15: Claims
15.1 Any complaints about defects in the execution of the work or deliveries must be made known at once to the contractor by the customer, but not later than eight days after the delivery date, by sending motivated notification by registered mail, in default of which the customer shall be deemed to have taken delivery of the goods in a good condition. In the event of hidden defects, invisible at the time of delivery, the customer shall send the contractor a motivated notification by registered mail within eight days of discovery of the defect and, likewise, not later than four months after the delivery date. If the period mentioned in this article is exceeded, any right the customer may have to reclaim shall lapse, except in the event of gross fault or negligence by the contractor.
15.2 The right as mentioned in the previous paragraph, shall lapse if any of the goods delivered by the contractor have been put into use in full or in part by or on behalf of the customer, have been processed, or have been supplied to a third party.
Article 16: Uncollected goods
If goods have not been collected by the time the delivery period expires, they shall continue to be held available for the customer. Uncollected goods shall be stored at the expense and risk of the customer. The contractor may always make exercise the power referred to in article 6:90 Civil Code.
Article 17: Payment
17.1. Payment shall be made at the place of business of the contractor or by remittance to an account designated by the contractor.
17.2 The agreed price shall be invoiced by the contractor to the customer as follows: 30% after conclusion of the agreement, 30% at the start of the work and 40% upon its completion.
17.3 The customer must pay every invoice in full within thirty days of the invoice date. The customer may never claim a reduction or put up a defence of set-off. Notwithstanding the above provision, the customer must pay the amount invoiced to the customer after the conclusion of the agreement in full prior to the commencement of the work. The instalment dates in this paragraph are both firm dates.
17.4 In the event of non-payment, overdue payment or partial payment by the customer within the time set by the contractor pursuant to these conditions, the customer shall be in default by operation of law and the full amount still outstanding to the credit of the contractor shall be immediately payable, while furthermore the customer will be obliged to pay to the contractor an interest payment of 1.5% of the agreed price per month, or part of a month, during which the customer fails to fulfil his obligations towards the contractor without prejudice the right of the contractor to suspend his obligations arising from the agreement.
17.5 The provisions in the third paragraph of this article shall also apply, subject to the proviso that the claim by the contractor shall be immediately and fully payable and the customer shall be immediately in default if:
a. the customer files a petition for suspension of payment, is declared bankrupt or assigns an estate;
b. attachment has been levied on all the customer’s property or part of his property;
c. the customer ceases or alienates his business, or an essential part of it, or proceeds with it in a different way.
17.6 Regardless of the agreed terms of payment, the customer shall be obliged, at the request of the contractor, to provide such security for the payment as the contractor deems sufficient for the payment. If the customer fails to do so within the specified period, he shall be deemed to be immediately in default. The contractor shall in that case have the right to terminate the agreement and recover his loss or damage from the customer.
17.7 All extrajudicial costs that must be reasonably incurred by the contractor to receive payment from the customer, after his default has commenced, shall be at the expense of the customer and will be calculated based on the collection rates of the Dutch Bar Association (Nederlandse Orde van Advocaten), with a minimum charge of EUR 113.45 per unpaid or partially paid invoice.
17.8 Each payment by the customer will be used firstly as payment for any costs incurred, damage suffered, or interests and subsequently as discharge of the longest outstanding debt, even if the customer advises that the payment concerns a later invoice.
17.9 If the contractor is held to be in the right in legal proceedings, all costs which he has incurred in connection with the proceedings shall be borne by the customer.
Article 18: Reservation of title and right of lien
18.1 After delivery of the goods the contractor shall retain title to them as long as the customer:
(a) fails or will fail to perform his obligations under this agreement or other similar agreements;
(b) fails or will fail to pay for activities performed or yet to be performed under such agreements;
(c) Has not paid claims that result from the non-observance of the above-mentioned agreements such as damage, penalties, interest and costs.
18.2. As long as title to delivered goods is retained by the contractor, the customer may not encumber them other than in the normal course of his business.
18.3 In the event that the customer is in default, the contractor is entitled to take away the goods delivered by him from the customer or his holder or have them taken away. If the customer, after having been called upon in writing to do so, fails to cooperate, he shall be liable to forfeit an immediately payable penalty of € 500.00 per day, including a part of a day.
18.4. If the contractor is unable to invoke his reservation of title because the delivered goods have been mingled, distorted or changed by way of accession (accessio), the customer shall be obliged to grant the contractor a lien on the newly created goods.
Article 19: Termination
If the customer wishes to terminate the agreement in circumstances where the contractor is not in default and the contractor agrees to this, the agreement shall be terminated by mutual consent. The contractor shall in that case be entitled to compensation of all pecuniary damage, such as any loss suffered, loss of profit and costs incurred.
Article 20: Applicable law and choice of forum
20.1. All disputes concerning the agreement concluded by the parties as well as these general terms and conditions shall by exclusively governed by Dutch law.
20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is not applicable, nor is any other international regulation the exclusion of which is permissible.
20.3. Only the civil court that has jurisdiction in the place of establishment of the contractor may take cognizance of disputes, unless this would be contrary to peremptory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.
20.4. The parties may agree a different form of dispute resolution such as arbitration or mediation.
of the enterprises affiliated with the Dutch Society of Entrepreneurs in the Thermal Insulation Company VIB (de Nederlandse Vereniging van Ondernemers in het Thermisch isolatiebedrijf VIB), filed at the Office of the District Court in ’s Gravenhage on 28 May 2002 under number 63/2002
Article 1: Applicability
1.1. These conditions apply to all offers made by members of the VIB and to all agreements they conclude and to all agreements that may be the result thereof. The offeror/supplier is the VIB member who uses these conditions. Such member is designated in these conditions as the contractor or seller. The other party is designated as the customer or buyer.
1.2. These conditions may be used only by members of the VIB.
1.3. The standard conditions of the customer shall not apply and are expressly rejected.
Article 2: Offers / Conclusion of the agreement
2.1. A quotation by the contractor is an invitation to make an offer. However, should a quotation be deemed to be an offer, or regarded as such, it should be deemed to have been submitted without obligation, unless expressly agreed otherwise in writing.
2.2. An agreement shall be concluded between the contractor and the customer if and after the contractor has sent a written confirmation of the order given by the customer to the said customer, or if such multilateral legal act is evidenced in writing or if the work has actually commenced.
2.3. Amendments, alterations or (further) arrangements concerning the agreement as mentioned under paragraph 2 of this article made by whatever party shall be deemed to be part of this agreement only if they have been confirmed in writing to the customer by the competent authorities of the contractor.
2.4. If the customer provides the contractor with details, drawings etc., the contractor may rely on their correctness and he will found his quotation on the said details, drawings etc.
2.5. If his quotation is not accepted, the contractor shall be entitled to charge the customer all costs incurred to submit his quotation.
Article 3: Intellectual property rights
3.1. Unless agreed otherwise, the contractor retains the copyright and all industrial property rights in the offers made by him and in designs, illustrations, drawings, models, test models, software etc. supplied by him.
3.2. The rights to the data referred to in paragraph 1 shall remain the property of the contractor irrespective of whether costs are charged to the customer for their production. Such data may not be copied, used or shown to third parties without the express consent of the contractor. If this provision is infringed, the customer shall owe the contractor a penalty of € 25,000. This penalty may be claimed in addition to any compensation owed by law.
3.3. The customer must return the data supplied to him as referred to in paragraph 1 at the first request of the contractor within the period specified by the contractor. In the event of an infringement of this provision the customer shall owe the contractor a penalty of EUR 1,000 per day. This penalty may be claimed in addition to any compensation owed by law.
Article 4: Advice, designs and materials
4.1. The customer cannot derive any rights from advice and information obtained from the contractor if they do not relate directly to the order.
4.2. The customer is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of the materials prescribed by him or on his behalf.
4.3. The customer shall indemnify the contractor against any claim by its third parties relating to the use of drawings, calculations, samples, models and so forth supplied by or on behalf of the customer.
4.4. The customer may, at his own expense, examine (or arrange for the examination of) the materials which the contractor wishes to use before they are processed. If the contractor suffers damage as a result, this shall be borne by the customer.
Article 5: Delivery period
5.1. The delivery period stated by the contractor shall never be regarded as a firm date unless expressly agreed otherwise in writing.
5.2. In fixing the delivery period the contractor assumes that he can execute the order in the circumstances known to him at that time.
5.3. The delivery period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of the contractor, the agreed payment or instalment has been received and the necessary conditions for execution of the order have been fulfilled.
5.4. a. If circumstances occur other than those known to the contractor when he fixed the delivery period, the contractor may extend the delivery period by the time necessary to execute the order in the circumstances. If the work cannot be fitted into the planning schedule of the contractor, it shall be completed as soon as his planning schedule permits this.
b. If there is extra work, the delivery period shall be extended by the time that is necessary to supply (or arrange for the supply of) the materials and parts for this purpose and to carry out the additional work. If the extra work cannot be fitted into the planning schedule of the contractor, it shall be completed as soon as his planning schedule permits this.
c. If there is a suspension of obligations by the contractor, the delivery period shall be extended for the duration of the suspension. If continuation of the work cannot be fitted into the planning schedule of the contractor, the work shall be completed as soon as his planning schedule permits this.
d. If work is impossible owing to weather conditions, the delivery period shall be extended for the term of the delay that has occurred as a result.
Article 6: Delivery and Transmission of risk
Delivery of the materials shall take place free of charge on the means of transport on which the goods are transported to the destination as agreed. From that time, the customer shall bear the risk of the goods.
Article 7: Price / Price changes
7.1 The price to be charged by the contractor to the customer is based on the prices of materials, transport costs, wages, insurance premiums, fiscal charges, import duties, and other levies as well as other price-affecting factors that are in force on the date of the quotation.
7.2. If four months have passed since the date on which the agreement was concluded and its performance has not yet been completed by the contractor, an increase in the price determinants may be passed on to the customer.
7.3. Payment of the price increase as referred to in paragraph 1 shall take place together with payment of the principal or the last instalment.
7.4 If goods are supplied by the customer and the contractor is prepared to use them, the contractor may then charge a maximum of 20 percent of the market price of the delivered goods.
Article 8: Impossibility of performance
8.1 The contractor shall be entitled to suspend performance of his obligations if he is temporarily prevented from performing them by circumstances that could not be foreseen at the time of the conclusion of the agreement and which are beyond his control.
8.2 Circumstances which could not be foreseen by the contractor and which are beyond his control are deemed to include failure of his suppliers and/or subcontractors to fulfil their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import or trade restrictions.
8.3 Without prejudice to the stipulations in the preceding paragraphs of this article the contractor shall be entitled to demand payment from the customer for all work carried out by him for the execution of the agreement, before the situation as described in the previous paragraphs of this article has set in.
8.4 If the contractor is still unable to perform six months after he has suspended fulfilment of his obligation because of circumstances as mentioned in the previous paragraphs of this article, he is entitled to dissolve the agreement, or dissolve it in part, by means of sending the customer a written notification to this effect without being liable to pay any damages.
Article 9: Scope of the work
The contractor shall ensure that all licences, exemptions and other decisions that are necessary in order to carry out the work are obtained in good time.
Article 10: Alterations to the work
10.1. Alterations to the work shall result in any event in extra work or reduced work if: a. there is an alteration to the design or the specifications; b. the information provided by the customer does not correspond with the reality; c. the quantities diverge by more than 10% from the estimates.
10.2. Extra work shall be calculated on the basis of the value of the price determinants applicable at the time when the extra work is carried out. Reduced work shall be calculated on the basis of the value of the price determinants applicable at the time when the agreement was concluded.
10.3 If the increase and decrease in the work results on balance in a decrease the contractor may charge the customer in the final invoice 10% of the difference in the balances. This provision does not apply in the case of a reduction in the work that is a result of a request of the contractor.
10.4 In the event that any material necessary for the execution of the agreement is unavailable, the contractor is entitled to use a substitute in which case the customer will be notified in writing of this replacement.
Article 11: Execution of the work
11.1 During the execution of the agreement the customer must make available to the contractor for no consideration the necessary facilities, including power, light, scaffolds, compressed air as well as items as mentioned in the Working Conditions Act (ARBO-wet).
11.2. The customer shall guarantee unrestricted and undisturbed execution of the work by the contractor, by ensuring, among others, adequate access to the workplace as well as its suitability to stay there and the possibility of storing materials.
11.3. For any damage suffered because of non-compliance or poor compliance by the customer with the obligations as described in this article, the contractor shall be entitled to charge the customer, without prejudice to the contractor’s right to suspend his contractual obligations.
11.4. The customer shall be liable for all damage as a result of the loss, theft or burning of or damage to tools, materials and other property of the contractor located at the place where the work is performed.
Article 12: Completion of the work
12.1. The work shall be deemed to have been completed when: (a) the customer has approved the work;
(b) the work has been used by the customer; if the customer uses only part of the work, such part shall be deemed to have been completed;
(c) the contractor gives written notice to the customer that the work has been completed and the customer does not indicate in writing within 14 days of the notice whether or not the work has been approved;
(d) the customer does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the use of the work.
12.2. If the customer does not approve the work, he shall be obliged to give written notice of this to the contractor specifying the reasons.
12.3. If the customer does not approve the work he shall give the contractor the opportunity to complete the work anew. The provisions of this article shall then apply once again.
Article 13: Liability
13.1. The contractor is liable for damage which the customer suffers and which is the direct and sole result of a failure attributable to the contractor. However, only loss or damage for which the contractor is insured or for which he should reasonably have been insured will be eligible for compensation.
13.2. The following are not eligible for compensation:
(a) consequential loss or damage, including for example loss or damage due to business standstills and loss of profit;
(b) damage to goods which are being worked on or to goods which are in the vicinity of the place where the work is being carried out;
(c) damage caused by the intent or deliberate recklessness of auxiliaries.
13.3. The customer indemnifies the contractor against all claims of third parties on account of product liability due to a defect in a product which has been supplied by the customer to a third party and consisted wholly or partly in products and/or materials supplied by the contractor.
Article 14: Warranty
14.1. With due observance of the restrictions set out hereafter, the contractor shall guarantee good execution of the work, the soundness and quality of the goods delivered by him to such extent that the contractor shall repair free of charge all defects in goods delivered or work completed, for which the customer proves that these have arisen within twelve months of delivery or completion by the contractor, solely or predominantly as a direct consequence of an incorrectly executed construction by the contractor or defective mounting, or handling of poor material, which are not the result of a working method prescribed to the contractor by any statutory provision. Article 11 shall apply.
14.2. If the customer has given or recommended goods to the contractor for manufacturing or processing, the warranty as mentioned in the first paragraph of this article will only cover the soundness of the execution of the work commissioned.
14.3. The warranty for the customer on goods obtained by the contractor from a third party shall not exceed the warranty given by the said third party to the contractor.
14.4. If the contractor replaces goods in order to fulfil his guarantee obligations, the replaced goods shall be property of the contractor.
14.5. The customer shall not be entitled to suspend his obligation to the contractor or consider it cancelled by claiming alleged non-performance of guarantee obligations by the contractor.
14.6. The contractor is entitled to suspend performance of his guarantee obligations towards the customer if the customer fails to comply, comply properly or comply in good time with his obligation under the agreement, or any obligation under an agreement resulting in its turn from the said agreement.
14.7. The contractor shall also be entitled to suspend performance of his guarantee obligations towards the customer, if knowledge made known to him after the conclusion of the agreement, provide good reason for fearing that the customer will not observe his obligation towards the contractor.
14.8. If the contractor complies with his guarantee obligations outside the Netherlands with respect to work originally carried out in the Netherlands or goods originally delivered in the Netherlands, the contractor shall be entitled to charge to the customer the travelling and hotel expenses of persons directly involved with the work carried out under the guarantee, as well as transport expenses for the supply of the necessary goods.
14.9. The customer can only make a claim under the warranty after he has fulfilled all his obligations towards the contractor.
14.10 a. No warranty is given for defects that are a result of: - normal wear and tear; - injudicious use; - non-maintenance or defective maintenance; - installation, assembly, modification or repair by the customer or by third parties.
b. No warranty is given for delivered items of goods that were not new at the moment of delivery.
14.11 The total warranty costs shall never exceed the agreed price.
Article 15: Claims
15.1 Any complaints about defects in the execution of the work or deliveries must be made known at once to the contractor by the customer, but not later than eight days after the delivery date, by sending motivated notification by registered mail, in default of which the customer shall be deemed to have taken delivery of the goods in a good condition. In the event of hidden defects, invisible at the time of delivery, the customer shall send the contractor a motivated notification by registered mail within eight days of discovery of the defect and, likewise, not later than four months after the delivery date. If the period mentioned in this article is exceeded, any right the customer may have to reclaim shall lapse, except in the event of gross fault or negligence by the contractor.
15.2 The right as mentioned in the previous paragraph, shall lapse if any of the goods delivered by the contractor have been put into use in full or in part by or on behalf of the customer, have been processed, or have been supplied to a third party.
Article 16: Uncollected goods
If goods have not been collected by the time the delivery period expires, they shall continue to be held available for the customer. Uncollected goods shall be stored at the expense and risk of the customer. The contractor may always make exercise the power referred to in article 6:90 Civil Code.
Article 17: Payment
17.1. Payment shall be made at the place of business of the contractor or by remittance to an account designated by the contractor.
17.2 The agreed price shall be invoiced by the contractor to the customer as follows: 30% after conclusion of the agreement, 30% at the start of the work and 40% upon its completion.
17.3 The customer must pay every invoice in full within thirty days of the invoice date. The customer may never claim a reduction or put up a defence of set-off. Notwithstanding the above provision, the customer must pay the amount invoiced to the customer after the conclusion of the agreement in full prior to the commencement of the work. The instalment dates in this paragraph are both firm dates.
17.4 In the event of non-payment, overdue payment or partial payment by the customer within the time set by the contractor pursuant to these conditions, the customer shall be in default by operation of law and the full amount still outstanding to the credit of the contractor shall be immediately payable, while furthermore the customer will be obliged to pay to the contractor an interest payment of 1.5% of the agreed price per month, or part of a month, during which the customer fails to fulfil his obligations towards the contractor without prejudice the right of the contractor to suspend his obligations arising from the agreement.
17.5 The provisions in the third paragraph of this article shall also apply, subject to the proviso that the claim by the contractor shall be immediately and fully payable and the customer shall be immediately in default if:
a. the customer files a petition for suspension of payment, is declared bankrupt or assigns an estate;
b. attachment has been levied on all the customer’s property or part of his property;
c. the customer ceases or alienates his business, or an essential part of it, or proceeds with it in a different way.
17.6 Regardless of the agreed terms of payment, the customer shall be obliged, at the request of the contractor, to provide such security for the payment as the contractor deems sufficient for the payment. If the customer fails to do so within the specified period, he shall be deemed to be immediately in default. The contractor shall in that case have the right to terminate the agreement and recover his loss or damage from the customer.
17.7 All extrajudicial costs that must be reasonably incurred by the contractor to receive payment from the customer, after his default has commenced, shall be at the expense of the customer and will be calculated based on the collection rates of the Dutch Bar Association (Nederlandse Orde van Advocaten), with a minimum charge of EUR 113.45 per unpaid or partially paid invoice.
17.8 Each payment by the customer will be used firstly as payment for any costs incurred, damage suffered, or interests and subsequently as discharge of the longest outstanding debt, even if the customer advises that the payment concerns a later invoice.
17.9 If the contractor is held to be in the right in legal proceedings, all costs which he has incurred in connection with the proceedings shall be borne by the customer.
Article 18: Reservation of title and right of lien
18.1 After delivery of the goods the contractor shall retain title to them as long as the customer:
(a) fails or will fail to perform his obligations under this agreement or other similar agreements;
(b) fails or will fail to pay for activities performed or yet to be performed under such agreements;
(c) Has not paid claims that result from the non-observance of the above-mentioned agreements such as damage, penalties, interest and costs.
18.2. As long as title to delivered goods is retained by the contractor, the customer may not encumber them other than in the normal course of his business.
18.3 In the event that the customer is in default, the contractor is entitled to take away the goods delivered by him from the customer or his holder or have them taken away. If the customer, after having been called upon in writing to do so, fails to cooperate, he shall be liable to forfeit an immediately payable penalty of € 500.00 per day, including a part of a day.
18.4. If the contractor is unable to invoke his reservation of title because the delivered goods have been mingled, distorted or changed by way of accession (accessio), the customer shall be obliged to grant the contractor a lien on the newly created goods.
Article 19: Termination
If the customer wishes to terminate the agreement in circumstances where the contractor is not in default and the contractor agrees to this, the agreement shall be terminated by mutual consent. The contractor shall in that case be entitled to compensation of all pecuniary damage, such as any loss suffered, loss of profit and costs incurred.
Article 20: Applicable law and choice of forum
20.1. All disputes concerning the agreement concluded by the parties as well as these general terms and conditions shall by exclusively governed by Dutch law.
20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is not applicable, nor is any other international regulation the exclusion of which is permissible.
20.3. Only the civil court that has jurisdiction in the place of establishment of the contractor may take cognizance of disputes, unless this would be contrary to peremptory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.
20.4. The parties may agree a different form of dispute resolution such as arbitration or mediation.
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Isolatie Combinatie
| Biesland 24 | |
| 1948 RJ Beverwijk | |
| The Netherlands | |
| T: | +31 (0)251 - 22 96 50 |
| F: | +31 (0)251 - 21 02 90 |
| E: | icb[at]icbeverwijk.nl |
| I: | icbeverwijk.nl |
| KVK: | 34058013 |
