GENERAL TERMS AND CONDITIONS FOR DELIVERY TO NON-CONSUMERS

 

Article 1.      General

These terms and conditions apply to every offer, quotation and agreement between Jacobs Presentation Products, hereinafter referred to as: “User”, and an Other Party to which the User has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing.

The present terms and conditions shall also apply to agreements with the User, the execution of which requires the involvement of third parties by the User.

Article 2 Quotations and offers

1 All offers and quotations of the User are without obligation, unless a term for acceptance has been set in the offer.    A quotation or offer shall lapse if the product to which the quotation or offer relates is no longer available in the meantime.

2 The User cannot be bound by his quotations or offers if the Other Party can reasonably understand that the quotations or offers, or a part thereof, are the result of an obvious error or omission or contains a transcription.

3 The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred within the framework of the agreement, including travel and accommodation, shipping and administration costs, unless otherwise indicated.

4 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.  In that case, the agreement will not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.

 

Article 3 Duration of the contract; terms of delivery, performance and amendment of the 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 term has been agreed or specified for the completion of certain work or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Other Party must therefore give the User notice of default in writing.  The User must be given a reasonable period in which to still execute the agreement.

If the User requires information from the Other Party for the execution of the agreement, the execution period will not commence until the Other Party has made this information available to the User in a correct and complete manner.

Delivery takes place at the User’s company. The Other Party is obliged to take delivery of the goods at the time they are made available to it.  If the Other Party refuses to take delivery or is negligent in providing information or instructions that are necessary for the delivery, the User will be entitled to store the items at the expense and risk of the Other Party.

The User is entitled to have certain work carried out by third parties.

The User will be entitled to execute the agreement in different stages and to invoice the part performed in this way separately.

If the agreement is executed in stages, the User may suspend the execution of those parts belonging to a subsequent stage until the Other Party has approved the results of the preceding stage in writing.

If, during the execution of the agreement, it appears that it is necessary to change or supplement it in order to ensure proper execution of the agreement, the parties will amend the agreement in good time and in mutual consultation.  If the nature, scope or content of the agreement, whether or not at the request or instruction of the Other Party, the competent authorities, etc., is changed and as a result the agreement is qualitatively and / or quantitatively changed, this may also have consequences for what was originally agreed.  As a result, the original agreed amount shall be increased or decreased.  The User shall, as far as possible, submit a quotation in advance.  An amendment to the agreement may also change the originally stated term of execution. 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 implement it only after approval has been given by the person authorised within the User and the Other Party has agreed to the price and other conditions specified for the execution, including the time to be determined at that time at which the execution will be carried out. Not or not immediately executing the amended agreement does not constitute a breach of contract on the part of the User and does not constitute grounds for the Other Party to terminate the agreement. Without being in default, the User may refuse a request to amend the agreement if this could have qualitative and/or quantitative consequences, for example for the work to be carried out or the goods to be delivered in that context.

If the Other Party should fail to properly fulfil its obligations towards the User, the Other Party will be liable for all damage (including costs) on the part of the User caused directly or indirectly as a result.

If the User and the Other Party agree on a fixed price, the User will nevertheless be entitled to increase this price at any time without the Other Party being entitled to dissolve the agreement for that reason, if the increase in 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, etc., or on other grounds that could reasonably be expected at the time of entering into the agreement.

If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and takes place within three months of the conclusion of the agreement, then only the Other Party that is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by means of a written statement, unless the User is still prepared to execute the agreement on the basis of what was originally agreed upon, or if the price increase is the result of a power or an obligation incumbent on the User pursuant to 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 entitled to suspend the fulfilment of the obligations or to dissolve the agreement, if:

– the Other Party does not fulfil its obligations under the agreement, or does not fulfil them in full or on time;

– After the agreement has been concluded, circumstances come to the User’s knowledge that give good reason to fear that the Other Party will not fulfil its obligations;

– When the agreement was concluded, the Other Party was requested to provide security for the fulfilment of its obligations under the agreement and this security was not provided or was insufficient;

– If, due to the delay on the part of the Other Party, the User can no longer be required to fulfil the agreement on the originally agreed conditions, the User will be entitled to dissolve the agreement.

Furthermore, User shall be entitled to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement is impossible or if there are other circumstances of such a nature that the User cannot reasonably be expected to maintain the agreement unaltered.

If the agreement is dissolved, the User’s claims against the Other Party will become immediately due and payable. If the User suspends the fulfilment of his obligations, he will retain his claims under the law and the agreement.

If the User suspends or dissolves the agreement, he will in no way be obliged to pay compensation for damage and costs incurred as a result in any way whatsoever.

If the dissolution is attributable to the Other Party, the User will be entitled to compensation for the damage, including the costs, caused directly or indirectly as a result.

If the Other Party fails to fulfil its obligations arising from the agreement and this failure to fulfil its obligations justifies termination, the User will be entitled to dissolve the agreement immediately and with immediate effect without any obligation on his part to pay any compensation or indemnification, while the Other Party will be obliged to pay compensation or indemnification on account of breach of contract.

If the agreement is terminated prematurely by the User, the User, in consultation with the Other Party, will ensure that the work still to be carried out is transferred to third parties.   This unless the termination is attributable to the Other Party. If the transfer of the work involves extra costs for the User, these will be charged to the Other Party.     The Other Party is obliged to pay these costs within the aforementioned period, unless the User indicates otherwise.

In the event of liquidation, (application for) a moratorium or bankruptcy, attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the Other Party, debt rescheduling or any other circumstance as a result of which the Other Party can no longer freely dispose of its assets, the User is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification.   In that case, the User’s claims against the Other Party will become immediately due and payable.

If the Other Party cancels an order placed in whole or in part, the items ordered or prepared for that purpose, plus any costs of supply, removal and delivery thereof and the working hours reserved for the execution of the agreement, will be charged in full to the Other Party.

 

Article 5 Force majeure

The User is not obliged to fulfil any obligation towards the Other Party if he is hindered to do so as a result of a circumstance that cannot be attributed to any fault, and for which he is not responsible by virtue of the law, a legal act or generally accepted practice.

In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this respect by law and jurisprudence, all external causes, foreseen or unforeseen, over which the User has no influence, but as a result of which the User is unable to fulfil its obligations.  This includes strikes in the User’s company or in the company of third parties. The User is also entitled to invoke force majeure if the circumstance preventing (further) fulfilment of the agreement occurs after the User should have fulfilled his obligation.

During the period that the force majeure continues, the User may suspend the obligations under the agreement.   If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to pay damages to the other party.

Insofar the User has already partially fulfilled his obligations under the agreement or will be able to fulfil them at the time of the commencement of force majeure, and has complied or will be able to comply with the obligations under the agreement.

If the User is entitled to invoice the part already complied with or to be complied with separately, the User shall be entitled to invoice the part already complied with or to be complied with separately. The Other Party is obliged to pay this invoice as if it were a separate agreement.

 

Article 6 Payment and collection costs

Payment must be made within 10 days of the invoice date, in a manner indicated by the User and in the currency in which the invoice was made, unless the User indicates otherwise in writing. User is entitled to invoice periodically.

If the Other Party fails to pay an invoice on time, the Other Party will be in default by operation of law.  In that case, the Other Party will owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate will be due.  The interest on the amount due and payable will be calculated from the moment that the Other Party is in default until the moment of payment of the full amount due.

The 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 due and finally to reduce the principal sum and the current interest.

The User may, without being in default as a result, refuse an offer of payment if the Other Party indicates a different order for the attribution of the payment. The User may refuse full repayment of the principal sum if the accrued interest and collection costs are not also paid.

The Other Party will never be entitled to set off its debts to the User.

Objections to the amount of an invoice do not suspend the payment obligation.  The Other Party that is not entitled to invoke section 6.5.3 (sections 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 in default in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain extrajudicial settlement will be for the Other Party’s account. The extrajudicial costs will be calculated on the basis of what is customary in the Dutch collection practice, currently the calculation method according to the Voorwerk II Report.  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 enforcement costs incurred will also be recovered from the Other Party. The Other Party shall also owe interest on the collection costs due.

 

Article 7 Retention of title

All items delivered by the User within the framework of the agreement remain the User’s property until the Other Party has properly fulfilled all its obligations under the agreement(s) concluded with the User.

Items delivered by the User that fall under the 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 authorised to pledge or otherwise encumber the goods falling under the retention of title.

The Other Party must always do everything that can reasonably be expected of it to safeguard the User’s property rights.

If third parties seize the goods delivered under retention of title or wish to establish or assert rights to them, the Other Party is obliged to inform the User of this immediately.

The Other Party undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft, and to make the insurance policy available for inspection by the User at the User’s first request.   In the event that the insurance is paid out, the User will be entitled to these tokens.  Insofar as necessary, the Other Party undertakes towards the User to

The Commission shall be entitled to cooperate, in advance, in any manner which may be necessary or desirable in that context.

In the event that the User wishes to exercise his property rights as referred to in this article, the Other Party will give its unconditional and irrevocable permission in advance to the User and third parties to be appointed by the User to enter all those places where the User’s property is located and to take back those items.

 

Article 8 Guarantees, investigation and complaints, limitation period

The goods to be delivered by the User shall comply with the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended under normal use in the Netherlands.   The guarantee referred to in this article applies to goods intended for use within the Netherlands.  In the case of use outside the Netherlands, the Other Party itself must verify whether the use of the goods is suitable for use there and meet the conditions that are set for it.  In that case, the User may set different guarantee and other conditions with regard to the goods to be delivered or the work to be carried out.

The guarantee referred to in paragraph 1 of this article applies for a period of 7 days after delivery, unless the nature of the delivered goods dictates otherwise or if the parties have agreed otherwise.   If the guarantee provided by the User

If the guarantee given concerns a business produced by a third party, the guarantee is limited to that given by the manufacturer of the business for it, unless otherwise stated.

Any form of guarantee will lapse if a defect has arisen as a result of or results from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Other Party and/or by third parties when, without the User’s written permission, the Other Party or third parties have made changes to the item or have tried to make changes to it, other items have been attached to it that do not need to be attached to it or if they have been processed or treated in a manner other than the prescribed one. The Other Party will also not be entitled to a 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), etc. The Other Party will not be entitled to a guarantee if the defect has arisen due to or as a result of circumstances beyond the User’s control.

The Other Party is obliged to inspect the goods delivered (or have them inspected) immediately at the moment that the goods are made available to it or at the moment that the work in question has been carried out. In doing so, the Other Party must investigate whether the quality and/or quantity of the goods delivered is in accordance with what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to the User in writing within seven days of delivery.  Any invisible defects must be reported to the User in writing immediately, but in any case no later than fourteen days after their discovery.  The report must contain a description of the defect that is as detailed 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 submits a complaint on time, this does not suspend its payment obligation.    In that case, the Other Party will also remain obliged to purchase and pay for the other items ordered.

If a defect is reported later, the Other Party will no longer be entitled to repair, replacement or compensation.

If it has been established that an item is defective and a complaint in this respect has been made in good time, the User shall return the defective item within a reasonable period of time after receipt of the return shipment or, if the return shipment is not reasonably possible, shall inform the Other Party in writing about the defect.

The Other Party shall, at the User’s discretion, replace or arrange for the repair of the defect or pay the Other Party a replacement fee in respect of it, in writing, at the Other Party’s discretion.   In the event of replacement, the Other Party is obliged to return the replaced item to the User and to provide the ownership thereof to the User, unless the User indicates otherwise.

If it is established that a complaint is unfounded, the costs incurred by the User as a result, including research costs, will be fully borne by the Other Party.

After expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Other Party.

Contrary to the statutory limitation periods, the limitation period for all claims and defences against the User and third parties involved by the User in the execution of an agreement shall be one year.

 

Article 9 Personal data

The User processes personal data within the meaning of the General Data Protection Ordinance (AVG).

The processing of personal data by the User takes place in accordance with the applicable (inter)national laws and (professional) regulations in the field of personal data protection.

The Other Party agrees that the User may and may (previously) process confidential information and personal data concerning the Other Party and/or persons working for, for, or connected with the Other Party, and/or its clients or third parties in the context of an (i) assignment given to the User by the Other Party, (ii) compliance with a statutory obligation, (iii) optimisation of the service provision and (iv) internal business purposes. Processing in this context also includes the sharing of these data with (legal) persons and companies affiliated with the User, and with third parties involved in the execution of the order, and also the processing by processors employed by or on behalf of the User.

The Other Party guarantees that personal data provided by it or originating from it may be processed by the User and indemnifies the User against damage in connection with claims by data subjects or third parties relating to non-compliance with the applicable laws and regulations in the field of the protection of personal data.

Taking into account the state of the art and the costs of implementation, the User will take appropriate measures to protect the personal data originating from the Other Party.

 

Article 10 Liability

Should the User be liable, this liability shall be limited to the provisions of this provision.

The User will not be liable for any damage, of whatever nature, caused by the fact that the User has relied on incorrect and/or incomplete information provided by or on behalf of the Other Party.

If the User is liable for any damage, the User’s liability will be limited to a maximum of twice the invoice value of the order, or at least to that part of the order to which the liability relates.

The User’s liability will in any case always be limited to the amount paid out by his insurer as the case may be.

The User is only liable for direct damage.

Direct damage is exclusively understood to mean the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to bring the User’s defective performance into line with the agreement, insofar as these can be attributed to the User and reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.

The User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.

The limitations of liability contained in this article shall not apply if the damage is due to intent or gross negligence on the part of the User or his managerial subordinates.

 

Article 11 Transfer of risk

The risk of loss, damage or depreciation is transferred to the Other Party at the moment at which goods are brought under the control of the Other Party.

 

Article 12 Safeguarding

The Other Party indemnifies the User against any claims by third parties who suffer damage in connection with the execution of the agreement and the cause of which is not the User’s.

If the User is held liable by third parties for this reason, the Other Party will be obliged to assist the User both extrajudicially and in court and to immediately do everything that may be expected of him in that case. Should the Other Party fail to take adequate measures, the User will be entitled, without notice of default, to do so himself. All costs and damage incurred by the User and third parties as a result of this will be entirely at the expense and risk of the Other Party.

 

Article 13 Intellectual property

The User reserves the rights and powers vested in him by virtue of the Copyright Act and other intellectual laws and regulations.   The User is entitled to use the knowledge gained by him as a result of the execution of an agreement for other purposes as well, insofar as no strictly confidential information of the Other Party is brought to the attention of third parties.

 

Article 14 Applicable law and disputes

All legal relationships to which the User is a party are exclusively governed by Dutch law, even if an obligation is performed in whole or in part abroad or if the party involved in the legal relationship is domiciled there.  The applicability of the Vienna Sales Convention is excluded.

The court in the User’s place of business has exclusive jurisdiction to hear disputes, unless the law compulsorily prescribes otherwise.  Nevertheless, the User has the right to submit the dispute to the competent court according to the law.

The parties will only appeal to the court after they have made every effort to resolve a dispute in mutual consultation.

 

Article 15 Location and amendment of conditions

These terms and conditions have been filed with the Chamber of Commerce in Apeldoorn.

The most recently filed version or the version applicable at the time of the establishment of the legal relationship with the User shall always apply.

The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.