article 1. General
- These conditions apply to every offer, quotation and agreement between SmartLevelLadder, hereinafter to be referred to as: `User`, and a Counterparty to which User has declared these conditions applicable, insofar parties have not expressly deviated from these conditions in writing.
- These conditions also apply to agreements with User, the implementation of which requires User to involve third parties.
- The applicability of any purchase or other conditions of the Counterparty are expressly rejected.
- If there is any uncertainty regarding the interpretation of one or more provisions of these general conditions, they should be interpreted ‘in the spirit’ of these provisions.
- If any situation arises between parties for which these general conditions do not provide, this situation should be assessed in accordance with the spirit of these general conditions.
article 2 Quotations and offers
- All quotations and offers of User are free of obligation, unless the quotation states an acceptance deadline. A quotation or offer shall expire if the product to which the quotation or offer relates, is meanwhile no longer available.
- User cannot be held to his quotations or offers if Counterparty is to reasonably understand that the quotations or offers, or a part thereof contain an obvious mistake or misprint.
- The prices mentioned in a quotation or offer are exclusive or VAT and other government levies, any costs to be incurred in the context of the agreement, including travel, accommodation and administration costs, unless specified otherwise.
- If the acceptance (whether or not with regard to minor items) deviates from the offer included in the quotation or offer, User is not bound to it. The agreement will then not be established in accordance with this deviating acceptance, unless User indicates otherwise.
- No rights can be derived from images, websites, indications of dimensions and weight, unless expressly agreed otherwise in writing.
article 3 Contract duration; delivery terms, implementation and change of agreement
- The agreement between User and Counterparty is entered into indefinitely, unless the nature of the agreement stipulates otherwise or if parties expressly agree otherwise in writing.
- Agreements shall only be binding to User, after User has confirmed them in writing.
- If for the completion of certain activities or for the delivery of certain affairs a term has been agreed or provided, this shall never be a fatal deadline. When a deadline is exceeded, the Counterparty should therefore declare User in default by means of a written notice. In this, User must be offered a reasonable deadline to implement the agreement after all.
- If User needs details from Counterparty for the implementation of the agreement, the implementation term shall start no sooner than after Counterparty has provided them to User in a correct and complete manner.
- Delivery of affairs shall be made to the agreed delivery address up to the moment of unloading. Hereinafter, the risk shall be borne by the principal.
- Transport of the affairs shall be at the expense and risk of the User and shall occur in a manner to be determined by the User.
- If the invoice amount of the order, ex VAT is lower than € 1000.00, User shall have the right to charge Counterparty transport costs.
- If, during the implementation of the agreement it appears that the agreement must be changed or supplemented in order to allow for proper implementation, parties will proceed to timely and mutual consultation to adjust the agreement. If the nature, extent or contents of the agreement, whether or not by request or direction of the Counterparty, of the authorized body etc. is changed due to which the agreement is changed in terms of quality and / or quantity, this may also affect what was originally agreed. As a result of this, the originally agreed amount can be raised or lowered. User will give a price indication of this where possible. A change in the agreement can also change the originally indicated implementation deadline. The Counterparty accepts the possibility of change of the agreement, including changes in price and implementation deadline.
- If the agreement is changed, including additions, User is required to comply therewith after approval has been given by the authorized person within User and the Counterparty has agreed with the price and other conditions indicated for the implementation, including the moment on which it shall be implemented, to be determined at such point. Failure to (immediately) comply with the changed agreement, does not result in default of User, nor shall it be a reason for Counterparty to terminate the agreement. Without being in default, User can refuse a request to change the agreement if this could affect quality / quantity, for instance, the work to be performed in that context or the goods to be delivered.
- Should the Counterparty in default with regard to the proper compliance with that to which he is required against User, the Counterparty shall be liable for all damages (including costs) suffered by User, directly or indirectly.
- If User agrees a fixed price with the Counterparty, User shall nevertheless at all times be entitled to increase this price, without the Counterparty being entitled to terminate the agreement for that reason, if the price increase arises from an authority or obligation under Law or legislation or is caused by an increase of the price of raw materials, wages etc or for other reasons that could not be foreseen on entering the agreement.
article 4 Suspension, dissolution, and premature termination of the agreement
- User is authorized to suspend compliance with the obligations or to dissolute the agreement if:
- the Counterparty fails to fully or timely meet its obligations under the agreement;
- after establishment of the agreement, facts that have come to the attention of User give rise to fear that the Counterparty will not fulfill its obligations;
- in taking out the agreement, Counterparty was asked to provide security for the fulfillment of its obligations under the agreement, and this security is not provided or proves insufficient;
- If, due to delays at the side of the Counterparty, User can no longer be required to implement the agreement in accordance with the agreed conditions, User shall be entitled to dissolute the agreement.
- User shall also be authorized to dissolute the agreement if circumstances arise that are of such nature that compliance with the agreement is impossible, or if circumstances arise in any other way that are of such nature that unchanged preservation of the agreement cannot be reasonably expected from User.
- If the agreement is dissolved, the claims of User against the Counterparty shall be immediately due and payable. If User suspends its compliance with the obligations, it shall retain its claims under Law and agreement.
- If User proceeds to suspension or dissolution, he shall not be required to pay compensation of any damages or cost arising as a result.
- If the dissolution is attributable to the Counterparty, User is entitled to compensate the damage, including the costs incurred as direct and indirect result.
- If the Counterparty does not fulfill its obligations under the agreement and this non-compliance justifies dissolution, user shall be entitled to dissolute the agreement effective immediately, without any obligation on its behalf to pay any compensation of damages or indemnification, whereas the Counterparty, by virtue of default, is required to pay compensation of damages or indemnification.
- If the agreement is terminated prematurely by User, User shall, in consultation with the Counterparty, ensure the transfer of any work to be performed to third parties. This, unless the termination is attributable to Counterparty. If the transfer of the work involves extra costs for User, these shall be forwarded to the Counterparty. The Counterparty is required to pay these costs before the specified deadline, unless User indicates otherwise.
- In case of liquidation, (application for) suspension of payment or bankruptcy, of attachment – if and insofar the attachment is not lifted within three months – at the expense of the Counterparty, of debt restructuring or any other circumstance that prevents Counterparty to freely access its assets, User is free to terminate the agreement effective immediately or to cancel the order or agreement, without any obligation to pay any compensation of damages or indemnification. The claims of User against Counterparty, shall in that case immediately be due and payable.
- If the Counterparty fully or partially cancels a placed order, the affairs ordered or prepared to that end, plus any supply and removal costs associated and the work hours reserved for the implementation of the agreement, shall be integrally forwarded to the Counterparty.
article 5 Force Majeure
- User is not required to fulfill any obligation towards the Counterparty if he is prevented to do so as a result of a circumstance that is not attributable to blame, nor is attributable to him under Law, a legal action or generally accepted beliefs.
- In these general conditions, Force Majeure is understood to mean, in addition to its interpretation under Law and jurisprudence, all external causes, foreseen or unforeseen, on which User has no influence, however, that do cause User to be unable to fulfill its obligations. This includes work strikes in the company of User or third parties. User also has the right to invoke Force Majeure if the circumstance that inhibits (further) compliance with the agreement arises after User was supposed to have fulfilled its obligations.
- User may suspend its obligations under the agreement during the period of Force majeure. If this period lasts longer than two means, each of the parties is entitled to dissolute the agreement, without the obligation to pay compensation of damages to the other party.
- Insofar user partially fulfilled its obligations under the agreement at the time Force Majeure arises, or will be able to fulfill them and independent value can be attributed to the part (to be) fulfilled, User is entitled to separately bill the part fulfilled, respectively to be fulfilled. The Counterparty is required to pay this invoice, as if it were a separate agreement.
article 6 Payment and collection costs
- Payment should occur within 21 days after invoice date, using a method to be specified by User, in the currency used on the invoice, unless specified otherwise in writing by User. User has the right to bill periodically.
- If the Counterparty remains in default with regard to the timely payment of an invoice, the Counterparty shall be automatically in default.
- Without being in default, user may refuse a payment offer, if the Counterparty specifies a different order for the allocation of the payment. User can refuse full payment of the principal sum, if this payment does not also cover the accrued interest and collection costs.
- The Counterparty shall never be entitled to offset the amount he is due to User.
- Objections against the amount of an invoice do not suspend the payment obligations. The Counterparty who does not qualify for appeal under 6.5.3 (articles 231 through 247 book 6 of the Dutch Civil Code), shall also not be entitled to suspend payment of an invoice for any other reason.
- If the Counterparty is in default in the (timely) fulfillment of his obligations, all reasonable extra judicial costs incurred to obtain payment shall be at the expense of the Counterparty. The extrajudicial costs shall be calculated based on what is customary at that time in Dutch collection practices. However, if user has incurred higher collection costs that were reasonably necessary, the actual costs incurred shall qualify for compensation. Any judicial and execution costs shall also be recovered from the Counterparty. The Counterparty also is due interest over the collection costs due.
article 7 Retention of Title
- All affairs delivered by User in the context of the agreement, shall remain property of User, until Counterparty has properly fulfilled all its obligations under the agreement(s) with User.
- Affairs delivered by User that fall under the retention of title under paragraph 1, cannot be resold and can never be used as currency. The Counterparty is not authorized to pledge the affairs that fall under the retention of title or to encumber them in any way.
- The Counterparty must always to everything that can reasonably be expected from him to safeguard the property rights of User.
- If third parties seize any affairs delivered under retention of title, or wants to place or exercise rights on them, Counterparty is required to immediately inform User of this.
- The Counterparty undertakes to insure any affairs delivered under retention of titled, and to keep them insured against fire, explosion and water damage, as well as against theft and to make available the policy to User for review at its first request. In case of any insurance payment, User is entitled to these amounts. Where necessary, Counterparty undertakes towards User to cooperate with everything that would (appear to) be necessary or desirable in that context.
- If User wants to exercise its property rights as specified in this article, Counterparty hereby gives User unconditional and irrevocable permission to enter all locations where the properties of User are located and to recover these affairs.
article 8 Warranties, investigation, and complaints, period of limitation
- User will repair or replace affairs with deficiencies that are not externally visible, of which the principal proves that they are the direct result of use of improper material or flawed finishing, at its sole discretion, free of charge, subject to the restrictions stipulated in the following paragraphs.
- The warranty referred to in paragraph 1 of this article, limits to the deficiencies mentioned, that have arisen within one year after delivery of the affairs to the counterparty.
- After a defect as referred to in paragraph 1 of this article has arisen, the principal must notify User in writhing, within 14 days.
- Deficiencies that are the result of improper transport, mounting, use, inadequate maintenance or changes made without written approval of User, are no covered by the warranty.
- The Counterparty is required to inspect or have inspected the affairs as soon as they are made available to him, respectively as soon as the relevant work has been performed. In this, Counterpart must investigate whether quality and / or quantity of the delivered matches what has been agreed and meets the requirements agreed by parties with regard to it. Any visible deficiencies must be reported to User within 48 hours after delivery. Any non-visible defects must immediately, however, at the latest within eight days after discovery thereof, be reported to user in writing. The report must contain a detailed description of the deficiency, allowing User to respond adequately. The Counterparty must enable User to investigate a complaint or have it investigated.
- If the Counterparty files a timely complaint, this shall not suspend its payment obligation. In that case the Counterparty shall remain required to accept and pay the affairs ordered.
- If a defect is reported at a later time, Counterparty no longer qualifies for recovery, replacement or indemnification.
- If it is determined that affairs are deficient and a timely complaint has been filed with regard to it, User shall – after return receipt of it, or, if it is not reasonably possible to return it, after written notice of the deficiency by the Counterparty – at its sole discretion, replace or recover the affair, or pay an amount to Counterparty in compensation thereof. In case of replacement, Counterparty is required to return the affair to be replaced to User, and to transfer ownership of it to User, unless User indicates otherwise.
- If a complain is found to be invalid, the costs arising because of it, including the research costs, at the side of the User, shall be integrally charged to the Counterparty.
- After expiration of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, shall be charged to the Counterparty in.
- Notwithstanding the statutory limitation periods, the limitation period of all claims and defenses against User and any third parties involved by User in the implementation of an agreement, shall be one year.
article 9 Liability
- Should User be liable, this liability shall be limited to the contents of this provision.
- User is not liable for damage of whatever nature, caused by the fact that User has assumed incorrect and / or incomplete information provided by or on behalf of the Counterparty.
- Should User be liable for any damages, the liability of User shall be limited to twice the invoice value of the order, or at least to that part of the order to which the liability relates.
- The liability of User shall in any case be limited to the amount paid by its insurer, where relevant.
- User shall only be liable for direct damage.
- Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar the determination relates to damage in the sense of these conditions, any reasonable costs incurred to have the poor performance of the User meet the agreement, insofar these can be attributed to User and reasonable costs incurred to prevent or limit damage, insofar the Counterparty demonstrates that these costs have led to a limitation of direct damage as referred to in these general conditions.
- User shall never be liable for indirect damage, including consequential damage, loss of profits, missed savings and damage caused by business interruption.
- The limitations of liability referred to in this article, shall not apply if the damage is attributable to intent or gross negligence of User or his managerial subordinates.
article 10 Transfer of Risk
- The risk of loss, damage or depreciations shall be transferred to Counterparty on the moment that goods are given in control of the Counterparty.
article 11 Indemnification
- The Counterparty indemnifies User against any claims of third parties who suffer damage in connection with the implementation of the agreement, the cause of which being attributable to others than User.
- Should User be addressed by third parties for this reason, Counterparty is required, both judicially and extrajudicially to assist User and to immediately do everything that is can be expected of him. Should Counterparty be in default in taking adequate measures, User shall, without notice of default, be entitled to take such actions. All costs and damages at the side of User and third parties arising as a result of this, shall integrally be at the expense and risk of the Counterparty.
Article 12 Intellectual property
- User reserves the right and authorities for which he qualifies under the Copyright Law and other intellectual Law and legislation. User has the right to use the knowledge gained in the implementation of an agreement for other purposes, insofar this does not involve disclosing strictly confidential information of Counterparty to third parties.
article 13 Applicable Law and disputes
- To all legal relationships in which User is a party, Dutch Law exclusively applies.
- Insofar disputes that may arise following an agreement to which these conditions fully or partially apply, should - in connection with their nature or based on the amount claimed – be settled by the district court, the court of the district in which the User is domiciled shall be the only court authorized to rule.