General Terms and Conditions of Payment and Delivery
Article 1 Definitions
Services: any and all performances to the Client offered by the Contractor that are the subject of an offer, Agreement or other legal act. This includes, inter alia, the delivery of goods and/or the performance of works and/or the performances of activities and/or the supply of services and/or other activities and thereto-pertaining activities. Delivery Period: the period specified by the Contractor to the Client for the completion of the Services or a part of the same. Client: the natural person or legal entity under the authority of whom or which the Contractor performs activities, supplies Services and/or delivers goods on the basis of these Terms and Conditions. Contractor: B.K.C. B.V., registered with the Chamber of Commerce under number 70350639, or one of the undertakings related to B.K.C. B.V. Agreement: the written arrangements between the Contractor and the Client with regard to the Agreement. Party (Parties): The Client and/or the Contractor. Written / In Writing: establishment on paper or electronically. Terms and Conditions: the whole of the provisions of the General Terms and Conditions of Payment and Delivery as set forth below.
Article 2 Applicability
- These Terms and Conditions are applicable to each and every offer and each and every Agreement by and between the Contractor and the Client.
- The present Terms and Conditions are also applicable to any and all Agreements by and between the Contractor and a third party, if the said third party was involved by the Contractor in the implementation of the Agreement concluded by and between the Contractor and the Client. The said third party can also – if addressed directly by the Client – rely on these Terms and Conditions in respect of the Client.
- If one or more provisions of these Terms and Conditions appear to be null and void then the remaining provisions of these Terms and Conditions shall remain in full force and effect.
- Changes in the Agreement and deviations from these Terms and Conditions shall only be valid if they were stipulated in writing by and between the Contractor and the Client. If changes are communicated differently then the risk regarding the performance of the change shall be vested in the Client.
- Arrangements or Agreements by the Client with staff of the Contractor shall not have binding effect on the Contractor, unless the Contractor confirmed them in writing.
- In this respect, staff unauthorised to act must, in any case, be understood to include all the staff without power of attorney as apparent from, inter alia, the trade register.
Article 3 Offers
- Before the Contractor submits an offer, the Client shall provide the Contractor with any and all correct and complete information that is required in order to prepare a correct offer.
- Offers of the Contractor are valid for a period of 30 days after the date of the offer.
- The Contractor shall never be liable for mistakes or incorrect data in brochures, offers, order confirmations, invoices, or data described elsewhere. As the occasion arises, the Contractor cannot be required to deliver.
- If an offer is accepted by the Client then the Contractor reserves the right to revoke its proposal or offer within 30 days after receipt of the acceptance.
Article 4 Conclusion of the Agreement
- An Agreement is concluded following acceptance (orally, by email or otherwise) by the Client of the offer of the Contractor. An Agreement is also concluded if the Contractor commences the relevant implementation.
- Each Party bears its own costs with regard to the preparation, the negotiation, and the conclusion of the Agreement between the Parties.
- The Contractor can depart from the correctness and the completeness of the information made available by the Client.
- Each and every Agreement is concluded on the suspensive condition that the Client, on the basis of the information to be gathered by the Contractor, appears to be sufficiently creditworthy.
Article 5 Implementation of the Agreement
- The Contractor shall perform the contract with due care.
- The Contractor shall warn the Client if the former observes or expects that the Agreement must be implemented in a changed manner. The said changes shall not result in a failure to comply with the Agreement by the Contractor.
- The Contractor shall be free to hire third parties to be designated by the same for the implementation of the Agreement.
- If, at the discretion of the Contractor, the performance of Services cannot take place at the time respectively during the period as anticipated in the Agreement due to weather or temporary soil conditions then the Contractor shall be entitled to suspend or interrupt the performance of its Services as long as the said circumstances continue. After the circumstances as described above have come to an end, the Contractor shall be entitled to postpone the performance of its Services if this is, at its discretion, required for a proper performance of the contract.
- In the event of a change in the accepted contract, due to a special contract of the Client or as a result of changes in the design / the performance or because the supplied data are incorrect or incomplete, or because of a deviation from the estimated quantities, additional costs deriving from the same must be qualified as contract extras, and to the extent that this results in less costs as contract reductions.
- Contract extras are calculated on the basis of the price-determining factors applicable at the time the contract extras are performed. Contract reductions are settled on the basis of the price-determining factors applicable at the time the Agreement was concluded.
Article 6 Delivery Period
- The Contractor shall make every reasonable effort to comply with the stipulated Delivery Period. A Delivery Period is only indicated approximately and is not a fatal deadline.
- The Delivery Period commences on the last day of the following moment:
- the day of conclusion of the Agreement;
- the day of receipt by the Contractor of the information required for the performance of the contract;
- the day of receipt by the Contractor of what must, according to the Agreement, be paid prior to the start of the activities by payment in advance.
- If the delivery is impossible through no fault of the Contractor or its suppliers then the delivery is suspended up to the moment that the Client is informed that the possibility of delivery reoccurs.
- An overstepping of the Delivery Period shall not entitle the Client to compensation or rescission.
Article 7 Delivery of goods
- Any and all deliveries by the Contractor are charged to the Client, unless they are part of the work accepted and have therefore been included in the price. A fee potentially payable for transport, processing and/or installation are invoiced separately.
- The Contractor warrants the authenticity of the goods delivered by the same, in accordance with the description in the offer and the Agreement. The Contractor shall monitor a high-quality composition of the goods to be delivered as diligently as possible, in consideration of the statutory provisions that are applicable to the same and geared to the destination respectively intended use familiar to the Contractor.
- The goods are deemed to have been delivered:
- if it was stipulated that the transport is organised by the Contractor: as soon as the carrier hired by the Contractor has taken receipt of the goods. From that moment the risk for damage, theft, and the like shall be at the expense of the Client.
- if it was stipulated that the transport is organised by the Client: when the goods are ready for shipment at the location designated by the Contractor and the Contractor informed the Client accordingly.
- The Contractor is authorised to deliver the goods in instalments.
- In case of damage to delivered goods, the Client must record this on the delivery receipt and report it to the Contractor in writing as soon as possible, however at the latest within two working days after delivery.
- A consignment note, delivery note or similar document provided upon delivery of the goods qualifies as evidence of the delivery of the goods mentioned on the same.
- If the Client fails to take delivery of the goods then the Contractor shall, at its sole discretion, be entitled to store the goods at the expense of the Client, to sell them to a third party or to dispose (have disposed) of the same, without prejudice to the right of the Contractor to full compensation.
- If the Contractor or a third party made pallets, containers, packing crates, and the like available for the packaging and/or the transport – whether or not upon payment of a returnable deposit or a security deposit – then the Client shall be required (unless it regards single-use packaging) to return the said packaging materials to the address specified by the Contractor, failing which the Client shall be liable to pay full compensation to the Contractor.
- If the returned packaging has not been cleaned or is in a bad condition then the Contractor shall be entitled to charge the costs for the cleaning and/or the repair or the replacement of the said packaging materials to the Client.
Article 8 Weighing, inspections, checks, tests
- The quantity of goods to be delivered is basically established through determination of the weight through weighing at the location of the Contractor. The Parties can agree that the weight is established through weighing on a calibrated weighbridge elsewhere or that the quantity of the goods to be delivered is established in m3 of bulk loaded in the means of transport.
- The Parties can stipulate in the Agreement to, on the initiative of the Client, inspect (have inspected), check (have checked) and/or test (have tested) the goods to be delivered in the means of transport. To this end, the Contractor offers, within reasonable limits, the necessary assistance and facilities.
- If inspections, checks, or tests were stipulated that take place on the initiative of the Client then the Client communicates the proposed time of the inspection, check, or test to the Contractor in a timely fashion in order that the latter can, if so required, be present during the same.
- Any and all costs associated with the inspections, checks, or tests, with the exception of the costs of the Contractor, are at the expense of the Client.
- If the inspection, check, or test cannot take place at the proposed time or if a re-inspection is required through the actions of the Client then any and all costs reasonably deriving from the same shall be at the expense of the Client, including the costs then to be incurred by the Contractor. The Client shall have a corresponding right if and to the extent that the said delay or the said re-inspection can be blamed on the Contractor.
- In case of a rejection, the Client must forthwith inform the Contractor accordingly whilst stating reasons. The Contractor and the Client shall then enter into discussions in order to reach a mutually satisfactory solution.
Article 9 Recommendations
- The Contractor only provides recommendations about the goods to be delivered and the Services to be supplied at the express request of the Client.
- The Client shall make any and all information available to the Contractor that is required for the provision of the recommendation and any and all other information of which the Client can reasonably understand that it is required for the implementation of the Agreement or the provision of recommendations.
- Recommendations of the Contractor are based on externally visible conditions, without a (destructive) examination on the part of the Contractor. The information and recommendations made available by the Contractor are of a general and indicative nature, and shall not have binding effect on the Contractor.
- If a sample was made available of a good to be delivered by the Contractor then this shall merely provide an impression of the good from which no further rights can be derived.
Article 10 Maintenance activities
- Agreements for the performance of maintenance are concluded for an open term, unless expressly stipulated otherwise.
- Termination of an Agreement for the performance of maintenance activities can only take place by either Party by registered letter addressed to the other Party and in consideration of a notice period of three months.
Article 11 Prices
- Any and all prices are in EUR, exclusive of VAT, and exclusive of potential other official duties. The Contractor is entitled to invoice each and every (partial) delivery separately.
- If in the period after the conclusion of the Agreement however prior to the, whether or not partial, implementation of the same, price increases occur in the cost factors of the Contractor (including but not limited to: changes in wage costs, the material and commodity prices, the transport charges, the energy prices, the currency exchange rates) then the Contractor shall be entitled to increase the payable price by a proportionate percentage.
Article 12 Payment
- The Client must pay the Contractor within 30 days after the date of the invoice to a bank account to be specified by the Contractor. In case of an overstepping of this (stipulated) period, the Client shall be in default, without a notice of default being required, and the Contractor shall be entitled – at its sole discretion – to suspend the further implementation of any and all Agreements pending with the Client or to rescind the same, without prejudice to its right to full compensation.
- Payment must take place without discount or settlement.
- In case of late payment the Client shall be liable to pay interest on the outstanding amount equal to 2% per month or part of a month, calculated from the due date of the relevant invoice up to the day of satisfaction in full.
- The payments effectuated by the Client are always first applied to satisfaction of payable interest and costs and then to satisfaction of the due and payable invoices that have been outstanding the longest, even if the Client indicates that the payment is related to another invoice.
- If the Client objects to an invoice sent by the Contractor then this shall not suspend the payment obligation of the Client.
- Any and all costs associated with a potential judicial or extrajudicial collection, including the costs of attachment, procedural costs, costs of a winding-up petition or bankruptcy application, are at the expense of the Client. Moreover, the Client shall be liable to pay the extrajudicial costs, which costs are set at 15% of the invoice amount, with a minimum of €500.00.
Article 13 Warranty
- The Contractor warrants that the delivered goods correspond to the Agreement, are suitable for the purpose that was communicated by the Client, and comply with the statutory requirements and other official rules as well as the requirements applied within the industry, inter alia in respect of health, safety, sustainability, and quality, with the understanding that the Contractor only accepts the warranty in respect of the Client that the supplier of the Contractor accepts in respect of the Contractor, all on the basis of the same conditions.
- If reference is made in the Agreement to technical, safety, quality, and/or other rules then the Client is deemed to be familiar with the same, unless the Client forthwith informs the Contractor of the contrary in writing.
- Small differences in quality, quantity, material, colour, and other differences that are deemed to be permissible in the industry, are not qualified as defects or shortcomings.
- A warranty is not provided in respect of inspections, recommendations, and similar activities performed by the Contractor.
Article 14 Complaints
- Verification of the nature and the scope of the delivered goods falls under the responsibility of the Client. Complaints about potential deficits or damages must on delivery be recorded by the Client on the delivery receipt, failing which the quantities as indicated on the consignment notes, the delivery notes, and similar documents are deemed to have been acknowledged as correct.
- Complaints about the quality of the delivered goods must be reported to the Contractor in writing within 48 hours after delivery, at least within 48 hours after detection, accompanied by a description of the nature of the defect. Complaints with regard to delivered goods later than one month after delivery are accepted in no instance whatsoever. The Contractor must be enabled by the Client to conduct an examination, after the notification, regarding the validity of the complaint, failing which each and every right to complain shall expire. Defects in a part of the delivered goods shall not entitle the Client to reject or refuse the entire order.
- Complaints about the calculated prices and other complaints regarding the invoices must be submitted to the Contractor in writing within 5 days after the date of the invoice. Complaints submitted later are not accepted. Complaints shall by no means result in suspension of the payment term or reduction of the payable invoice amount.
- The Contractor shall, in case of justified complaints, be free to opt between repair of the goods, the free replacement of the said goods, or settlement by means of a credit note.
- Return shipments can only take place after express approval of the Contractor. The costs for return shipments are at the expense of the Client.
Article 15 Suspension / rescission
- The Contractor is entitled to rescind or suspend the Agreement, either in whole or in part, with immediate effect and without judicial intervention, in writing and without being liable to pay compensation, without prejudice to the right of the Contractor to – in lieu of rescission or suspension – claim compliance and without prejudice to its right to claim compensation if:
- the client fails to comply with the obligations vested in the same and the said failure is not remedied within 10 days after despatch of the notice of default;
- circumstances come to the knowledge of the Contractor after the conclusion of the Agreement that give the Contractor good reason to fear that the Client cannot comply with the obligations pursuant to the Agreement;
- the Client applies for suspension of payment or is granted suspension of payment;
- a winding-up petition or bankruptcy application is filed in respect of the Client or the Client is declared to be insolvent or bankrupt;
- the Client applies for admission to the Dutch Debt Restructuring (Natural Persons) Act or admission to the Dutch Debt Restructuring (Natural Persons) Act is granted to the Client;
- an attachment is imposed on a considerable part of the assets of the Client;
- the Client becomes, from a commercial or social perspective, seriously discredited.
- If the Contractor rescinds or suspends the Agreement in pursuance of this article then each and every claim of the Contractor in respect of the Client immediately falls due.
Article 16 Reservation of title
- The Client only becomes the owner of the goods delivered or yet to be delivered by the Contractor on suspensive conditions. Any and all goods delivered by the Contractor remain the property of the Contractor up to the moment that the Client has complied fully with all its payment obligations in respect of the Contractor on account of any Agreement concluded with the Contractor. This also includes claims of the Contractor regarding a failure to comply with an Agreement.
- Following a corresponding demand, the Client shall provide the Contractor with a specification of the relevant insurance companies, the insurance terms and conditions, and the premiums paid by the Client.
- The Client shall never be entitled to alienate, pledge, lease, give on loan or otherwise introduce (have introduced) unpaid goods, in any way or pursuant to any title whatsoever, outside its business or work area, barring alienation in the context of its normal business operations.
- If the Client does not comply with its obligations, or there is founded fear that the Client shall not do so, then the Contractor shall be entitled to remove or have removed the delivered (completed) goods at the Client or third parties who hold the goods for the Client. The Client is required to lend any and all cooperation in this, subject to a penalty of 10% of the amount payable by the same per day, with a minimum of €250.00.
Article 17 Liability
- The Client is required to provide any and all relevant information that is necessary to be able to perform the contract without danger to third parties. If it becomes apparent afterwards that the Client did not provide all necessary information to the Contractor then the Contractor shall never be liable for the relevant consequences.
- The Contractor shall be liable for a shortcoming in the performance of the contract to the extent that it is the result of non-observance by the Contractor of the diligence, the expertise, and the professionalism that the Client could rely on during the performance of the activities.
- The Contractor took out liability insurance. The liability of the Contractor shall in any case be limited to the amount and the risks for which the insurer provides cover, minus the excess. The business liability insurance policy and the employer’s liability insurance policy of the Contractor are sent on request.
- If and to the extent that the Contractor should be subject to liability, on any account whatsoever, the said liability shall always be limited to at most the net amount associated with the total performance of the work.
- The following shall never qualify for compensation: trading losses, e.g. lost profit or business interruption losses, consequential damages or visible damages, e.g. damages inflicted on other goods during the performance of activities. The Contractor shall never be liable in respect of the Client for costs, damages, and the like, that may arise on the part of the Client as a direct or indirect result of acts or omissions of the Contractor, persons employed by the Contractor, or third parties hired by the Contractor. Nor shall the Contractor be liable for damages that derive from a penalty, compensation, warranty, indemnification, or similar clause, barring if and to the extent that the liability would also have existed without this kind of clause.
- The limitations of the liability included in this article are not applicable if the damages can be blamed on intent or gross negligence of the board of directors under the articles of association of the Contractor.
- If the goods to be delivered were not manufactured by the Contractor then the potential liability of the Contractor in respect of the Client shall be limited to the amount for which the supplier of the Contractor shall be liable in respect of the Contractor.
- The entitlement of the Client to compensation shall not limit its obligations to pay in conformity with the contract and shall never result in a right of set-off.
- The Contractor shall not be liable for damage to or loss of materials supplied by the Client, unless determined otherwise above.
- With regard to deliveries of sand, soil, topsoil, and compost it is noted that the Contractor cannot, respectively can no longer, be held liable if in the context of a normal processing in the framework of the performance, mixture with earth present at the Client has occurred.
- The Contractor shall not be liable for damages deriving from subsidence of the soil / earth or topsoil if the said subsidence can by no means be related to the construction, the treatment or the processing of the earth, soil, or topsoil.
- The Contractor shall not be liable for any form of damages deriving from the early commissioning of a part of the work or of the entire work.
- The Contractor shall not be liable for any form of damages deriving from the use of the materials prescribed by the Client or the implementation of a design originating from the Client.
Article 18 Available tools
The Contractor can, whether or not at the expense of the Client, make tools available to the Client, for instance for loading activities. During the use of the said tools by the Client, the Client bears any and all risks, unless it can be demonstrated that potential defects derive from deviations or errors that had already been present when the tool was made available to the Client by the Contractor.
Article 19 Survey and completion
- The Contractor informs the Client in writing of completion of the contract. This may regard the entire contract, but also a part of the same. The despatch of the last invoice must be qualified as written notification of completion of the contract.
- Within eight (8) days after completion of the work, the Client can request to survey the work. Potential defects shall be mentioned in a completion report. In this respect, the Contractor shall also mention within what period the shortcomings shall be remedied.
- Small defects, which do not or barely influence the foreseen use of the work, shall not affect the completion.
- If the Client did not notify the Contractor that it intends to survey the work then the work is deemed to have been completed within eight (8) days after the notification as intended in paragraph 1. The work is also deemed to have been completed if the final invoice was paid by the Client.
- As soon as the work is deemed to have been completed, there can no longer be question of a failure to comply with the Agreement on the part of the Contractor. The relevant consequence is also that the stipulated amount must be paid in full to the Contractor.
- Complaints regarding the performance of the work or delivery of materials are not admissible if the Client did not observe the normal care that can be expected of the Client after conclusion or performance of the work and/or the delivery of materials.
Article 20 Confidentiality
- The Parties shall keep and handle any and all data regarding the Agreement, which must on the basis of their nature be deemed to be confidential, confidentially. The said confidential information shall not be used or reproduced, unless this is required for the implementation of the Agreement between the Contractor and the Client or for the purpose that was envisioned with the Agreement. Information with regard to customers of the Contractor and the Client must in any case be qualified as confidential information, unless the said information is of a public nature.
- This confidentiality obligation remains applicable during a period of five years following termination of the Agreement.
Article 21 Force majeure
- In case of force majeure, the Contractor can suspend compliance with its obligations pursuant to the Agreement. The Contractor can never be addressed for compensation for costs, damages, and interest, if it was unable to comply with obligations vested in the same due to force majeure.
- If the Contractor is, due to force majeure of a temporary (more than 3 months) or permanent nature, prevented from (further) implementing the Agreement then it is entitled, without judicial intervention and without any obligation to pay compensation, to rescind the Agreement, or to suspend (further) implementation of the Agreement.
- In the following instances there shall be question of force majeure:
- the location of origin is not accessible and/or drivable due to (prolonged) bad weather conditions;
- the disposal from the location of origin is not allowed by the official authorities;
- the delivery at the location of sale is not allowed by the official authorities;
- an officially imposed transport ban applies.
- Force majeure is, moreover, understood as each and every shortcoming that cannot be blamed on the Contractor on account of the fact that it cannot be attributed to a fault of the Contractor (even it could already have been foreseen at the time of the conclusion of the Agreement) and is neither at the expense of the Contractor by law, a legal act or generally accepted practice. Force majeure does in any case include, but is not limited to, the following: (civil) war, threat of war, riots, industrial action, transport difficulties, fire, natural disasters, storm, black ice, snow, and similar weather conditions, not and/or late delivery by suppliers, sickness of staff of the Contractor and other serious disruptions at the business or in the business operations of the Contractor or at the business or in the business operations of third parties hired by the Contractor or through its brokerage.
- If the Contractor cannot perform activities in conformity with the Agreement, because preparatory and/or other activities at the Client were not performed or not in a timely fashion, then the Contractor shall enter into discussions with the Client about alternative performance. These circumstances shall result in a shortcoming on the part of the Client and shall not affect the authority of the Contractor to rely on the rights vested in the same by law, the Agreement, and these Terms and Conditions.
- If, upon the occurrence of force majeure, the Contractor has already (partly) complied with its obligations or could only partly comply with its obligations then the Contractor shall be entitled to invoice that which it has already performed and/or delivered separately. As the occasion arises, the Client shall be required to pay the relevant invoice as if it regarded a separate agreement.
Article 22 Costs in case of early termination of Agreement
The Client is required to compensate the Contractor for any and all costs, damages, and interest that are the result of early termination of the Agreement, also in case of insolvency / bankruptcy of the Client and in case the Client was granted suspension of payment. The said costs and damages also include the payable fee plus turnover tax in respect of the stipulated residual term of the Agreement, the costs of the stipulated goods to be delivered and the stipulated Services to be supplied by the Contractor, as well as any and all costs incurred and to be incurred for collection of the damages both in and out of court, including the costs of legal assistance.
Article 23 Applicable law
Dutch law is exclusively applicable to the Agreement and the agreements deriving from the same. The applicability of the Vienna Sales Convention is excluded.
Article 24 Disputes
Any and all disputes that may arise as a result of the Agreement, or agreements deriving from the same, shall be brought to the cognisance of the competent court in Arnhem.