GENERAL TERMS AND CONDITIONS OF JACOBS BREDA ELECTRONICS V.O.F.
In these General Terms and Conditions the following definitions apply:
1. General Terms and Conditions: these General Terms and Conditions;
2. J.B.E.: the general partnership Jacobs Breda Electronics V.O.F., with its corporate seat in (4813 BD) Breda, at the address Liesbosstraat 14;
3. Agreement: the Agreement between J.B.E. and the Other Party, of which these General Terms and Conditions form part;
4. Other Party: the party with whom J.B.E. has the legal relationships as described in article 2;
5. Working days: calendar days, with the exception of Saturdays, Sundays and official holidays as referred to in the Dutch General Extension of Time Limits Act (Algemene Termijnenwet);
6. Items: all that which is offered by J.B.E., as well as all that which is delivered and/or is rented and/or otherwise made available by J.B.E. to the Other Party.
2. Applicability of the General Terms and Conditions
2.1 These General Terms and Conditions form part of and apply to all demands made and quotes requested by the Other Party, as well as to all offers made by J.B.E., to all orders given by the Other Party to J.B.E., all order confirma-tions by J.B.E. and all Agreements effected between J.B.E. and the Other Party, as well as any agreements arising there-from or otherwise and any additional agreements and subsequent agreements by whichever name and whatever title entered into between J.B.E. and the Other Party.
2.2 Derogations from these General Terms and Conditions, as well as deviating provisions, clauses and/or arrange-ments, are valid only if and insofar as these have been accepted and confirmed explicitly by J.B.E. either in writing or via electronic means.
3. Offer and formation of the Agreement
3.1 Any offer or quote made by or on behalf of J.B.E. is without obligation and does not bind J.B.E. Additionally, any offer made by J.B.E. is valid only as long as stocks last.
3.2 A discount offer made by or on behalf of J.B.E. is valid only during the period stated in the offer. After expiry of this period, the offer is no longer valid and, subsequently, the Other Party can no longer derive any rights from the discount offer made.
3.3 Any documents, information, records or other items supplied with the quotes, proposals and offers will remain the property (including the intellectual property) of J.B.E. At first request of J.B.E., and also if the Other Party does not enter into an Agreement within the period set by J.B.E., all these documents, information, records and other items must be returned to J.B.E. within two working days.
3.4 All samples provided by or on behalf of J.B.E., as well as any other items supplied by way of an example by J.B.E. are never binding as regards the quality, the weight or the proportion of the items sold/rented/made available by J.B.E. to the Other Party. Deviations from samples provided/ items supplied by way of an example can never result in a right of the Other Party to compensation and/or dissolution of the Agreement.
3.5 Subject to the following provisions, an Agreement between J.B.E. and the Other Party will come into effect only after J.B.E. has explicitly confirmed the Agreement in writing and/or by electronic means.
3.6 Any additional arrangements or changes made after the Agreement has come into effect, as well as oral arrange-ments and/or promises made by J.B.E. or its personnel are only binding on J.B.E. if J.B.E. has explicitly confirmed these arrangements, changes and/or promises in writing or by electronic means.
3.7 If J.B.E. has not confirmed the Agreement, but has already started the execution of the Agreement with the consent of the Other Party, the Agreement is deemed to have been formed.
4. Prices and payments
4.1 Unless agreed otherwise in writing or by electronic means, any prices payable by the Other Party to J.B.E. are in Euro and are exclusive of value added tax (BTW), and exclusive of other taxes related to the Agreement, exclusive of transportation costs and exclusive of packaging costs.
4.2 J.B.E. may at all times correct obvious mistakes made with regard to the prices stated by J.B.E. If the Other Party has entered into an Agreement with J.B.E. in which an obvious mistake has been made as regards the price stated, J.B.E. is entitled to adjust this price. The Other Party will be bound by this price change. In that event, the Other Party is enti-tled to dissolve the Agreement with J.B.E. in writing within five working days after adjustment of the price.
4.3 J.B.E. is entitled to raise the price agreed upon with the Other Party at all times if this is caused by statutory regula-tions and/or provisions, or if this is caused by cost-raising circumstances which cannot be attributed to J.B.E. In such case, the Other Party is bound to this change; however, the Other Party is entitled – if the price increase takes place within 3 months after entering into the Agreement - to dissolve the Agreement with J.B.E. in writing within five work-ing days after the price increase.
4.4 Payment by the Other Party shall take place in the manner indicated by J.B.E. If payment has not been made in the manner indicated by J.B.E., the payment is not valid.
4.5 If J.B.E. requests that payment is made in full in advance and the Other Party complies with this, this is deemed to be an Agreement to advance payment in full.
4.6 If the Other Party does not pay the price in full in advance, even though this was requested by J.B.E., the Other Party has not complied with the conditions made, as a result of which, unless J.B.E. explicitly confirms otherwise in writing or by electronic means, there is no Agreement between the Other Party and J.B.E. In any event, as long as the Other Party does not pay the full price in advance, even though this was requested by J.B.E., the Other Party will not be able to enforce any right whatsoever with regard to the execution of the Agreement concerned until the requested ad-vance payment has taken place in full.
4.7 If J.B.E. has not requested advance payment in full, payment must always take place within eight days after the in-voice date.
4.8 Any payment made by the Other Party will first be used to settle interest payable by the Other Party and costs of collection and administration payable to J.B.E., and subsequently to settle the outstanding amounts according to their age, therefore starting with the amount which has been outstanding the longest.
4.9 The Other Party is never entitled to set off the amount owed to J.B.E. against any other amount, or to suspend its payment obligations towards J.B.E.
5. Obligations of the Other Party
5.1 The Other Party must ensure that all information, data, records and other items which according to J.B.E., are need-ed for the correct and timely execution of the Agreement, are made available to J.B.E. in a timely manner.
5.2 The Other Party must check thoroughly whether a permit is needed for the use and/or the possession of items bought and/or rented from J.B.E. or otherwise made available by J.B.E. to the Other Party. The Other Party must be sure to acquire all necessary permits itself. J.B.E. is never liable for any penalties and/or damage arisen as a result of not hav-ing the required permit(s) on the part of the Other Party.
5.3 If the Other Party rents items from J.B.E. and/or if items are made available to the Other Party by J.B.E., the Other Party must ensure that the items concerned are adequately insured for the entire period (rental or otherwise) concerned against, at least, damage, theft and loss. The costs of such insurance(s) are at the expense of the Other Party. The Other Party is liable for any damage arisen during or by the period (rental or otherwise) concerned.
5.4 If the Other Party insures any risk in connection with the Agreement, it is obliged to indemnify J.B.E. against any damage suffered and to be suffered by J.B.E. as a result of the realisation of this risk.
5.5 The Other Party is not authorized to transfer any rights or obligations pursuant to the Agreement or any Agreements arising from it wholly or partially to third parties.
6. Delivery and execution of the Agreement
6.1 Delivery times stated by J.B.E. will commence only after the Agreement has entered into effect, J.B.E. has received all required information from the Other Party, the necessary formalities have been complied with and any advance payment payable by the Other Party has been received.
6.2 Unless explicitly confirmed otherwise by J.B.E. in writing or by electronic means, the delivery times stated by J.B.E. are not applicable if the items need to be delivered abroad.
6.3 J.B.E. is entitled at all times to extend the delivery time agreed upon, at the latest one working day before expiry of the agreed delivery time, once-only and unilaterally by thirty working days. In that event, the Other Party cannot derive any rights from the delivery time stated in the Agreement.
6.4 Delivery shall take place ex location of J.B.E. The risk regarding the items concerned will pass to the Other Party at the time of loading these items for the purpose of transport to the Other Party or to the location indicated by the Other Party, or, if the Other Party collects the items at the location of J.B.E., at the time of handover of the items concerned to the Other Party.
6.5 After delivery, the items are at the risk of the Other Party, even if J.B.E. executes or has executed work with or to the delivered items afterwards, or assists with assembling and/or completing and/or installing the delivered items.
6.6 If it appears that delivery of an item is impossible, J.B.E. is entitled to provide a replacement item to the Other Party. At the latest upon delivery of the replacement item, the Other Party will be informed of the delivery of the replacement item.
6.7 J.B.E. is entitled to make partial deliveries, which parts may be invoiced separately; in that case, the Other Party is bound to these partial invoices.
6.8 J.B.E. is entitled to execute additional work or to have this executed without prior consent of the Other Party and to invoice this work, provided that the costs of the additional work do not exceed 10% of the originally agreed amount.
6.9 J.B.E. is entitled to engage third parties for the purpose of execution of the Agreement. J.B.E. is not liable for dam-age caused by these third parties.
6.10 Any advice, suggestions or tips given by and/or on behalf of J.B.E. with regard to the placement and/or the use of the items, are given to the best of its knowledge; however, they are without obligation and can never lead to any liabil-ity whatsoever on the part of J.B.E.
7. Retention of title
7.1 J.B.E. will remain the owner of all items delivered and to be delivered until the Other Party has fully complied with any claims of J.B.E., on whatever ground, including claims arising from non-compliance of the Other Party with Agreements, such as claims with regard to damage, penalties, interest and costs, and until payment has taken place in full. The Other Party shall nevertheless carry the risk of all damage caused by itself or by third parties to the items con-cerned.
7.2 As long as J.B.E. retains title to the items delivered, the Other Party is not entitled to sell or encumber these items. The Other Party is obliged to store the items delivered under retention of title carefully and they must be recognisable as being property of J.B.E.
7.3 If the Other Party does not comply with its payment obligations or other obligations towards J.B.E, the Other Party irrevocably authorises J.B.E. to collect the items delivered under retention of title without further notice of default or court intervention. The Other Party shall fully cooperate in the aforementioned collection of the items and hereby gives unconditional and irrevocable consent to J.B.E., and any third parties to be appointed by J.B.E., to enter all places where the property of J.B.E. is stored.
8. Prohibition on resale
8.1 Unless with prior written consent of J.B.E. or consent given by J.B.E. by electronic means, the Other Party is prohib-ited from re-selling, delivering, donating or otherwise transferring the items delivered by J.B.E. and/or originating from J.B.E., to third parties acting in the course of their profession or business or who can otherwise not be considered to be consumers, such at the exclusive discretion of J.B.E.
8.2 Violation by the Other Party of the prohibition on resale as referred to in the above, is considered to be a failure in the performance on the part of the Other Party within the meaning of article 10.1 of these General Terms and Condi-tions.
9. Force majeure
9.1 If the execution of the Agreement is impeded by force majeure or becomes highly inconvenient, J.B.E. has the right to adapt the Agreement to the circumstances, or to dissolve the Agreement or to have this dissolved and/or to give no-tice of termination of the Agreement, or to suspend the execution of the Agreement.
9.2 Force majeure means, in addition to the definition given by the law and by case law, any reasons, whether or not foreseen, which cannot be influenced by J.B.E., but as a result of which J.B.E. is not able to fulfil its obligations towards the Other Party.
9.3 In these General Terms and Conditions, force majeure includes at any rate: war, threat of war, riots, abuse, strikes, fire, water damage, force of nature, flooding and other impeding weather circumstances, traffic impediments, illness of staff, office sit-in, operational failures, power failures, failures of networks or connections regarding telecommunications or otherwise, force majeure of suppliers or other third parties engaged, non-delivery or non-timely delivery by suppliers or other third parties engaged and the absence of any permits to be obtained from the authorities.
9.4 J.B.E. may also successfully invoke force majeure if the circumstance impeding performance of the Agreement oc-curs after J.B.E. should have complied with its obligation.
9.5 The Other Party can never derive any right to damages from the dissolution, change and/or suspension of the Agreement or its execution as a result of force majeure.
10. Default, suspension, dissolution, interest and costs
10.1 If the Other Party does not comply with its payment obligations or does not comply on time, if the Other Party does not meet one or more of its obligations under the Agreement with J.B.E. or does not meet them on time or im-properly, as well as in the event the Other Party is declared bankrupt or has been granted a moratorium, if the statutory debt restructuring scheme has been declared applicable to the Other Party, if the Other Party has been placed under guardianship and in all other cases than the abovementioned in which the Other Party is no longer capable of freely disposing of its property, if taking delivery by the Other Party fails to take place and in the event that the Other Party has been requested by J.B.E. to provide security for the fulfilment of its obligations and security is not furnished or not furnished on time or inadequately, the claims of J.B.E. will become due and payable immediately and the Other Party will be in default by operation of law. In addition, J.B.E. is entitled in such case, at its discretion, to dissolve the Agree-ment with the Other Party entirely or partially and/or to unilaterally terminate the Agreement early without observing a notice period and/or to suspend its obligations.
10.2 The Other Party owes interest on the amount payable to J.B.E. over the period that the Other Party is in default regarding payment. This interest is, on an annual basis, equal to the statutory commercial interest pursuant to Article 119a of Book 6 of the Dutch Civil Code (Burgerlijk Wetboek) plus 2%.
10.3 After the Other Party has become in default, J.B.E. is entitled to collect the amount owed to it without further no-tice of default. All costs in this respect, both judicial and extrajudicial costs, are at the expense of the Other Party. The amount of the extrajudicial costs of collection is calculated in accordance with the Dutch Extrajudicial Collection Costs Fees Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
11.1 The Other Party must check the delivered item(s), or have it/these checked, immediately as soon as the item(s) delivered have been made available to the Other party. In this context, the Other Party must check whether or not the item(s) delivered correspond with the Agreement. If visible defects are discovered, the Other Party must notify J.B.E. of this immediately in writing. If no complaint has been submitted regarding this matter immediately, at the latest within two working days after receipt, the work performed by J.B.E. and/or the items delivered as well as the data on delivery notes and or such documents are deemed to be correct and completely accepted by the Other Party.
11.2 With regard to defects already present at the time of delivery, but firstly discovered at a later time the Other Party must submit a complaint at the latest within seven working days after delivery.
11.3 In deviation from the provisions of article 11.1 and 11.2, submitting a complaint with regard to items delivered and/or work performed regarding which a test or an inspection takes place, must be done immediately on the date of the test or inspection and at the place where the test or inspection takes place and must subsequently be confirmed in writing to J.B.E. immediately.
11.4 If the Other Party does not submit a complaint within the periods stated in the articles 11.1, 11.2 and 11.3, the Other Party cannot derive rights from its complaint.
11.5 If the Other Party has submitted a complaint on time, as described in the articles 11.1, 11.2 and 11.3, and it ap-pears that, in the opinion of J.B.E., this complaint is valid, J.B.E. shall remedy the defects free of charge, without the Other Party being able to enforce any right to any damage whatsoever.
11.6 In order to invoke the rights arising from article 11.5, the Other Party must:
- Notify J.B.E. in a timely manner, as stated in the articles 11.1, 11.2 and 11.3, and in writing of the defects discovered;
- Describe in detail the nature of, and the reason for the complaints;
- Prove that the defects are the direct result of an attributable failure of J.B.E.;
- Prove that the defects appear under normal circumstances and during normal usage of the items delivered;
- Prove that the items delivered by J.B.E. have not been processed, treated or otherwise adapted (further or at all) by the Other Party and/or a third party after delivery by J.B.E.; and
- Extend all cooperation to J.B.E. to enable J.B.E. to correct the defects within a reasonable period of time.
11.7 If, in the opinion of J.B.E., the costs of performing the work as agreed upon and/or the costs of remedy are not proportionate to the interests of the Other Party in this respect, the Other Party – if J.B.E. is liable in this respect- is enti-tled to damages with due observance of the provisions of article 12, as a result of which the Other Party is no longer entitled to remedy. In such an event, J.B.E. is never liable for more than or for a higher amount than the amount of the costs it would have spent upon fulfilment of the obligation described in article 11.5.
11.8 Returning the item(s) delivered is at the expense and risk of the Other Party and can take place only after prior explicit written consent and dispatch instructions of J.B.E.
12 Limitation of liability
12.1 The liability of J.B.E. as referred to in article 11.7, as well as any other liability arising from other facts or circum-stances or otherwise, will never extend beyond, and is at all times limited to, that which has been described in this article 12.
12.2 J.B.E. is only liable for direct damage which can be attributed to J.B.E. Direct damage exclusively refers to the fol-lowing:
a. Reasonable costs for the determination of the cause and size of the damage, insofar as the determination refers to damage within the meaning of these General Terms and Conditions;
b. Reasonable costs required to make the faulty performance of J.B.E. correspond to the Agreement;
c. Reasonable costs made in order to prevent or limit damage, insofar as the Other Party proves that these costs have resulted in a limitation of direct damage as referred to in these General Terms and Conditions.
12.3 J.B.E. is never liable for any other damage than the direct damage referred to in the above, such as indirect dam-age, including consequential damage, lost profits, lost savings and damage as a result of business interruption.
12.4 If the execution of the Agreement by J.B.E. results in liability, this liability is at all times limited to the amount paid out by J.B.E.’s insurance company to J.B.E. in the case concerned on the basis of the insurance taken out by J.B.E.
12.5 If for whatever reason no amount is paid out on the insurance referred to in article 13.4, any liability of J.B.E. will be limited to the purchase price/rent price/order amount charged by J.B.E. to the Other Party in the context of the Agreement concerned, such with a maximum of € 5,000.
12.6 With observance of the other provisions of this article, J.B.E. is at any rate not liable for damage caused by im-proper use of the items sold/rented/made available concerned or by the use of these for a different purpose than the one for which it is suitable according to objective standards. In addition, J.B.E. is not liable for damage caused by a defect in or with regard to the items concerned, or because of the work done by J.B.E. respectively, if:
- It is plausible in view of the circumstances of the case that the defect causing the damage did not exist at the time of delivery/being made available by J.B.E.;
- The defect which caused the damage is the result of the fact that the items delivered/rented/made available by J.B.E. and/or the work performed by J.B.E. complies with mandatorily government regulations;
- The defect which caused the damage is the result of careless behaviour of the Other Party, of the staff of the Other Party, of persons engaged by or on behalf of the Other Party or of any other person on the part of the Other Party;
- The defect is caused by information, instructions, data and directions given by or on behalf of the Other Party to J.B.E.;
- The damage is caused by the intent, recklessness bordering on intent or gross negligence on the part of the Other Par-ty;
- The damage has arisen because the Other Party acted in breach of the descriptions offered, enclosed or mentioned on the website of J.B.E.
12.7 The Other Party shall fully indemnify J.B.E. against all claims of third parties for compensation of damage con-nected to or which are the result of the use of the items delivered by J.B.E. to the Other Party or the work performed by J.B.E. respectively.
12.8 Unless explicitly indicated otherwise by J.B.E. in writing or by electronic means, J.B.E. is not bound to guarantees or warranties granted by its suppliers or other third parties. Consequently, the Other Party cannot derive any rights, nor have these derived, towards J.B.E. from guarantees or warranties granted by suppliers of J.B.E., or by other third parties.
12.9 Any liability of J.B.E. lapses by the expiry of one year from the time the items were delivered by J.B.E. or the work was performed by J.B.E. respectively. The claim of the Other Party against J.B.E. regarding damages or repair prescribes after a period of one year after the Other Party held J.B.E. liable in writing.
13 Other provisions
13.1 The titles of the articles in these General Terms and Conditions are solely for the purpose of facilitating the reading of these General Terms and Conditions and can therefore not be used for the interpretation of these General Terms and Conditions.
13.2 In the event that any provision of these General Terms and Conditions is not valid and/or is not enforceable whol-ly or partly, this will have no consequences whatsoever to the validity of all other provisions of these General Terms and Conditions. If a provision of this General Terms and Conditions is not valid, but would be valid if it was more lim-ited in scope or purport, this provision will automatically apply in its most far-reaching or sizeable limited scope or purport in which the provision is valid.
13.3 Any legal relationship between J.B.E. and the Other Party, to which these General Terms and Conditions apply, is governed by Dutch law, with the exclusion of applicability of the United Nations Convention on Contracts for the In-ternational Sale of Goods (Vienna Sales Convention).
13.4 All disputes between J.B.E. and the Other Party will be judged by the court with subject matter jurisdiction in the Dutch Zeeland-West-Brabant court district, Breda location.
13.5 The Dutch text of these General Terms and Conditions prevails over any translation thereof.