General Terms and Conditions - Schilder Electric

Article 1. General

These conditions apply to any offer, quotation and agreement between Schilder Electric BV (Burg. Nieuwenhuijsenstraat 16 B, 1906CM in Limmen, KvK number 75256908), hereinafter referred to as "User", and a Counterparty to which User has declared these conditions applicable, to the extent that these conditions have not been expressly deviated from by the parties in writing.
The present terms and conditions also apply to agreements with the User, the execution of which requires the involvement of third parties by the User.
These general terms and conditions are also written for the employees of User and its management.
The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
If one or more provisions of these general terms and conditions are at any time wholly or partially void or voidable, then the other provisions of these general terms and conditions remain fully applicable. The User and the Other Party will then consult to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.
If ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation must take place "in the spirit" of these provisions.
If a situation arises between the parties that is not governed by these general terms and conditions, this situation should be judged according to the spirit of these general terms and conditions.
If User does not always require strict compliance with these terms and conditions, it does not mean that the provisions thereof do not apply, or that User would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

Article 2. Quotations and offers

All quotations and offers of the User are without obligation, unless the quotation stipulates a deadline for acceptance. A quotation or offer expires if the product to which the quotation or offer relates is no longer available in the meantime.
User cannot be held to its bids or offers if the Other Party can reasonably understand that the bids or offers, or any part thereof, contain an obvious mistake or slip of the pen.
The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in connection with the agreement, including travel and accommodation, shipping and handling costs, unless otherwise indicated.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, the User will not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
A compound quotation does not oblige User to perform part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.

Article 3. Contract duration; terms of delivery, performance and modification of agreement

The agreement between the User and the Other Party is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
If a deadline has been agreed or specified for the completion of certain work or for the delivery of certain goods, this will never be a deadline. If a deadline is exceeded, the Other Party must therefore give the User written notice of default. The User must be offered a reasonable period to still perform the agreement.
If the User requires information from the Other Party for the performance of the agreement, the performance period will not commence until after the Other Party has provided it to the User correctly and completely.
Delivery takes place ex the User's premises. The Other Party will be obliged to take delivery of the items at the time they are made available to it. If the Other Party refuses to take delivery or fails to provide information or instructions necessary for delivery, the User will be entitled to store the items at the Other Party's expense and risk.
User has the right to have certain work performed by third parties.
User is entitled to execute the agreement in several phases and invoice the part thus executed separately.
If the agreement is performed in phases, the User may suspend the performance of those parts belonging to a subsequent phase until the Other Party has approved in writing the results of the preceding phase.
If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, then the parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Other Party, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may also have consequences for what was originally agreed. As a result, the amount originally agreed upon may be increased or decreased. User will give as much advance notice as possible. An amendment to the agreement may also change the originally specified period of performance. The Other Party accepts the possibility of amending the agreement, including the change in price and term of execution.
If the agreement is amended, including a supplement, the User will be entitled to perform the agreement only after the competent person within the User has given his consent and the Other Party has agreed to the price and other conditions stated for the performance, including the time to be determined for performance. Failure to perform or not immediately perform the amended agreement will not constitute a breach of contract by the User, nor will it be a ground for the Other Party to terminate the agreement. Without being in default, the User may refuse a request to change the agreement, if this could have consequences in qualitative and / or quantitative respect, for example for the work to be performed or goods to be delivered in that context.
If the Other Party should default in the proper fulfillment of what it is obliged to do towards the User, then the Other Party will be liable for all damages (including costs) on the part of the User caused directly or indirectly as a result.
If the User agrees with the Other Party on a fixed price, the User shall nevertheless be entitled at all times to increase this price without the Other Party in that case being entitled to dissolve the agreement for that reason, if the increase in the price results from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages et cetera or on other grounds that were not reasonably foreseeable at the time the agreement was concluded.
If the price increase other than as a result of a change in the agreement exceeds 10% and takes place within three months of the conclusion of the agreement, only the Other Party entitled to invoke title 5, section 3 of Book 6 of the Dutch Civil Code will be entitled to dissolve the agreement by means of a written statement, unless the User is then still willing to perform the agreement based on what was originally agreed, or if the price increase results from a power or an obligation incumbent on the User under the law or if it has been stipulated that delivery will take place more than three months after the purchase.

Article 4. Suspension, dissolution and early termination of the agreement

User is authorized to suspend the fulfillment of the obligations or dissolve the agreement, if:

the Other Party does not fulfill the obligations under the agreement, in full or in a timely manner;
after the conclusion of the agreement User learns of circumstances that give good reason to fear that the Other Party will not fulfill the obligations;
the Other Party was requested at the conclusion of the agreement to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient;
If, due to the delay on the part of the Other Party, the User can no longer be required to fulfill the agreement against the originally agreed conditions, the User is entitled to dissolve the agreement.

Furthermore, the User is authorized to dissolve the agreement if circumstances arise of such a nature that compliance with the agreement is impossible or if other circumstances arise of such a nature that the User cannot reasonably be required to maintain the agreement unaltered.
If the agreement is dissolved, the User's claims against the Other Party are immediately due and payable. If the User suspends fulfilment of its obligations, it shall retain its claims under the law and the agreement.
If the User proceeds with suspension or dissolution, he will in no way be obliged to compensate for damages and costs caused in any way.
If the dissolution is attributable to the Other Party, the User will be entitled to compensation for the damage, including costs, incurred directly and indirectly as a result.
If the Other Party fails to comply with its obligations arising from the agreement and this failure to comply justifies dissolution, the User will be entitled to dissolve the agreement forthwith and with immediate effect without any obligation on its part to pay any compensation or indemnification, while the Other Party will be obliged to pay compensation or indemnification on account of default.
If the agreement is terminated prematurely by the User, the User will, in consultation with the Other Party, arrange for the transfer of work still to be performed to third parties. This unless the Other Party can be blamed for the termination. If the transfer of the work entails additional costs for the User, these will be charged to the Other Party. The Other Party will be obliged to pay these costs within the period stated for that purpose, unless the User indicates otherwise.
In case of liquidation, of (application for) suspension of payment or bankruptcy, of attachment - if and to the extent that the attachment has not been lifted within three months - at the Other Party's expense, of debt rescheduling or another circumstance as a result of which the Other Party can no longer dispose freely of its assets, the User will be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification. The User's claims against the Other Party will in that case be immediately due and payable.
If the Other Party fully or partially cancels a placed order, the items ordered or prepared for it, plus any supply and delivery costs thereof and the labor time reserved for the execution of the agreement, will be charged in full to the Other Party.

Article 5. Force Majeure

User is not obliged to fulfill any obligation to the Other Party if he is prevented from doing so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act or generally accepted practice.
In these general terms and conditions, force majeure means, in addition to its definition in law and jurisprudence, all external causes, foreseen or unforeseen, over which the User cannot exercise any control, but which prevent the User from fulfilling his obligations. This includes strikes in the company of the User or third parties. The User is also entitled to invoke force majeure if the circumstance preventing (further) compliance with the agreement occurs after the User should have fulfilled its obligation.
User may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then either party is entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
Insofar as the User has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfil them, and independent value can be attributed to the fulfilled or still to be fulfilled part respectively, the User will be entitled to invoice the part already fulfilled or still to be fulfilled part separately. The Other Party will be obliged to pay this invoice as if it were a separate agreement.

Article 6. Payment and collection costs.

Payment should be made prior to delivery, in a manner to be indicated by the User in the currency invoiced, unless otherwise indicated in writing by the User. User is entitled to invoice periodically.
If the Other Party fails to pay an invoice on time, the Other Party shall be in default by operation of law. The Other Party will then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate is due. The interest on the amount due and payable will be calculated from the moment the Other Party is in default until the moment of payment of the amount due in full.
User is entitled to have the payments made by the Other Party go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and current interest.
User may, without thereby being in default, refuse an offer of payment if the Other Party designates a different order for the allocation of payment. User may refuse full repayment of the principal sum, if this does not include the interest still due and accrued and collection costs.
The Other Party shall never be entitled to set off the amount it owes to the User.
Objections to the amount of an invoice do not suspend the payment obligation. The Other Party who is not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
If the Other Party is in default or absence in the (timely) fulfillment of its obligations, then all reasonable costs to obtain satisfaction out of court shall be borne by the Other Party. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the User has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party will also owe interest on the collection costs owed.

Article 7. Retention of title.

All items delivered by the User within the framework of the agreement remain the property of the User until the Other Party has properly fulfilled all obligations under the agreement(s) concluded with the User.
Items delivered by the User that are subject to retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Other Party is not authorized to pledge the items falling under the retention of title or encumber them in any other way.
The Other Party must always do everything that can reasonably be expected of him to secure the User's property rights.
If third parties seize the items delivered under retention of title or wish to establish or assert rights to them, the Other Party will be obliged to inform the User of this immediately.
The Other Party undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage and against theft and to make the policy of this insurance available for inspection by the User on demand. In the event of any insurance payment, the User will be entitled to this money. Insofar as necessary, the Other Party undertakes vis-à-vis the User to cooperate in everything that may be necessary or desirable in that context.
In case the User wishes to exercise its property rights indicated in this article, the Other Party gives unconditional and irrevocable permission in advance to the User and third parties to be designated by the User to enter all those places where the User's property is located and to take those items back.

Article 8. Warranties, investigations and complaints, limitation period

The goods to be delivered by the User meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in the event of normal use in the Netherlands. The guarantee referred to in this article applies to items intended for use within the Netherlands. In the event of use outside the Netherlands, the Other Party itself must verify whether they are suitable for use there and meet the conditions set for them. User may in that case set other guarantee and other conditions with respect to the goods to be delivered or work to be performed.
The guarantee referred to in paragraph 1 of this article shall apply for a period of 12 months after delivery on production and construction faults, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. Specific conditions to the granting of the guarantee mentioned in paragraph 1 for Lithium battery cells is that this guarantee is only granted if it can be made plausible that a properly functioning protection system was used for the battery cells that prevents the battery cells from being discharged too quickly, from reaching temperatures that are too high or too low or from reaching voltages that are too high or too low. If the guarantee provided by the User concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good for it, unless otherwise stated. After expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Other Party.
Any form of guarantee will lapse if a defect has arisen as a result of or arising from injudicious or improper use thereof or use after the expiration date, improper storage or maintenance by the Other Party and/or third parties when, without the User's written consent, the Other Party or third parties have made changes or tried to make changes to the item, attached other items to it that should not have been attached to it or if they were processed or treated in a manner other than prescribed. Nor will the Other Party be entitled to any guarantee if the defect has arisen due to or as a result of circumstances beyond the User's control, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) et cetera.
The Other Party is obliged to examine the delivered goods, or have them examined, immediately at the time that the goods are made available to it or the work in question has been carried out respectively. The Other Party must examine whether the quality and/or quantity of the items delivered corresponds to what has been agreed and meets the requirements that the parties have agreed in this respect. Any defects must be reported to the User in writing within two months of their discovery. The report must contain as detailed a description of the defect as possible, so that the User is able to respond adequately. The Other Party must give the User the opportunity to investigate a complaint (or have it investigated).
If the Other Party complains in time, this does not suspend its payment obligation. The Other Party will in that case also remain obliged to take delivery of and pay for the other goods ordered.
If a defect is reported later, the Other Party is no longer entitled to repair, replacement or compensation.
If it has been established that an item is defective and a complaint about this has been submitted in time, the User will replace the defective item within a reasonable term after receiving it back or, if returning the item is not reasonably possible, written notification about the defect from the Other Party, at the User's discretion, or take care of repairing it or pay the Other Party a replacement fee for this. In the event of replacement, the Other Party will be obliged to return the replaced item to the User and transfer ownership thereof to the User, unless the User indicates otherwise.
If it is established that a complaint is unfounded, the costs incurred as a result, including research costs, on the part of the User as a result, will be borne in full by the Other Party.
After expiration of the warranty period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Other Party.
Notwithstanding the statutory limitation periods, the limitation period of all claims and defenses against the User and the third parties involved by the User in the execution of an agreement is one year.

Article 9. Liability

If User should be liable, this liability is limited to what is regulated in this provision.
User is not liable for damages, of any nature whatsoever, arising because User has relied on incorrect and / or incomplete information provided by or on behalf of the Other Party.
If the User should be liable for any damage, the User's liability is limited to a maximum of one time the invoice value of the order, at least to that part of the order to which the liability relates.
The User's liability shall in any case always be limited to the amount paid by its insurer in the relevant case.
User is only liable for direct damages.
Direct damage will be understood to mean only the reasonable costs incurred to determine the cause and scope of the damage, to the extent that the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have the User's faulty performance comply with the agreement, to the extent that they can be attributed to the User, and reasonable costs incurred to prevent or limit damage, to the extent that the Other Party demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions.
User shall never be liable for indirect damages, including consequential damages, lost profits, missed savings and damages due to business interruption.
The limitations of liability contained in this article do not apply if the damage is due to intent or gross negligence on the part of User or its managerial subordinates.

Article 10. Transfer of risk

The risk of loss, damage or decrease in value shall pass to the Other Party at the time when goods are brought into the control of the Other Party.

Article 11. Indemnification

The Other Party indemnifies the User against any claims by third parties, who suffer damage in connection with the performance of the agreement and the cause of which is attributable to parties other than the User.
If the User should be held liable by third parties for that reason, the Other Party will be obliged to assist the User both extrajudicially and judicially and immediately do all that may be expected of it in that case. Should the Other Party fail to take adequate measures, the User will be entitled to do so itself without notice of default. All costs and damages on the part of the User and third parties as a result will be entirely at the Other Party's expense and risk.

Article 12. Intellectual property

User reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual laws and regulations. User is entitled to use the knowledge gained by the execution of an agreement on its side also for other purposes, to the extent that no strictly confidential information of the Other Party is brought to the knowledge of third parties.

Article 13 Applicable law and disputes

All legal relationships to which the User is a party are governed exclusively by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The judge in the User's place of business is exclusively competent to take cognizance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, the User is entitled to submit the dispute to the court with jurisdiction according to the law.
The parties will only appeal to court after they have made every effort to settle a dispute by mutual agreement.

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