NoSoapCompany BV (Netherlands) STANDARD TERMS OF BUSINESS
Standard Terms and Conditions for the Supply of Goods and Services
NL-1251 KC Laren
hereinafter referred to as: User
a. ln these Standard Terms and Conditions, User means the user of these Standard Terms and Conditions, and the Other Party means the other party to a contract with User.
2. Scope of these Terms and Conditions
a. These Terms and Conditions apply to all offers and all contracts between User and the Other Party in relation to which User has declared these Terms and Conditions to be binding, except where these Terms and Conditions are expressly varied in writing by parties.
b. These Terms and Conditions also apply to all contracts with User for the performance of which a third party is to be engaged.
c. These Terms and Conditions also apply to contracts with User for the performance of which User needs to engage a third party.
d. These Standard Terms and Conditions have also been drawn up for User's employees and directors.
e. The applicability of the Other Party's terms and conditions of purchase or any other terms and conditions used by the Other Party is expressly excluded.
f. lf all or any part of the provisions set out in these Standard Terms and Conditions are void or voided at any time, the other provisions in these Standard Terms and Conditions will continue to apply in full. ln such cases, User and the Other Party will consult to agree on new provisions to replace the void or voided ones, approximating the scope and purpose of the void or voided provisions as closely as possible.
g. lf it is unclear how to interpret any of the provisions set out in these Standard Terms and Conditions, such provisions must be interpreted in their'spirit'.
h. lf a situation arises between parties which is not provided for in these Standard Terms and Conditions, the situation must be dealt with in the spirit of these Standard Terms and Conditions.
i. lf at any time User fails to demand strict compliance with these Terms and Conditions, such failure does not constitute a waiver of the provisions contained herein or of User's right to demand strict compliance with these Terms and Conditions in other cases.
3. Quotations and offers
a. All quotations and offers submitted by User are free of obligation and remain valid for 30 days, unless the quotation states a different deadline for acceptance. An offer or quotation expires if the product referred to in the offer or quotation has since ceased to be available.
l. lf, within the term of the contract, a deadline is agreed for completion of certain work, this will not be a strict deadline. This means that if User misses the deadline, the Other Party will need to send User written notice of default.
m. Unless otherwise agreed in writing, the provisions set out above also apply mutatis mutondis to maintenance contracts, with the description of the services given in User's quotation, or subsequently agreed with the Other Party in writing, serving as guidance to parties.
4. Performance and changes; Duration of contract for the supply of goods
a. lf User requires information from the Other Party in order to perform the contract, the period of performance will not start until after the Other Party has provided User with proper and full information.
b. Delivery will be made ex User's premises. The Other Party must take receipt of the goods at the time when they are made available to it. lf the Other Party refuses to take receipt of the goods or fails to provide the information or instructions necessary for the delivery, User may store the goods at Other Party's risk and expense.
c. User may have certain work carried out by a third party.
d. User may carry out the contract in different stages, and invoice each completed stage separately.
e. lf the contract is performed in stages, User may suspend performance of parts of the contract falling within the scope of the next stage until such time as the Other Party has approved the delivery or completion of the previous stage in writing.
f . lf it turns out during the performance of the contract that, in order for the contract to be performed properly, changes should be made to the work or additional work should be carried out, parties will adjust the contract accordingly in mutual consultation and in a timely fashion. lf changes are made to the nature, scope or terms of the contract, whether or not at the request of the other Party, the competent authorities, etc., resulting in the contract being changed in qualitative and/or quantitative terms, this may also have an impact on the work originally agreed. As a result, the amount originally agreed may be increased or reduced. ln such cases, User will submit a price quote in advance, if possible. A change to the contract may also result in the originally agreed completion deadline being changed. The Other Party accepts that changes may be made to the contract, including price changes and changes to the completion deadline.
g. lf a change, including an addition, is made to the contract, User may decide not to give effect to such change until implementation has been greenlighted by User's authorised staff, and the Other Party has approved the price and other terms quoted for implementation of the change, including the new completion deadline. Failure to perform the amended contract, or to do so immediately, does not constitute breach on User's part or grounds for the Other Party to give notice to terminate the contrad. User is not in default when it refuses a request for a change to be made to the contract, if this could have qualitative and/or quantitative implications, for example for the work to be carried out or goods to be delivered under the contract.
h. lf the Other Party defaults on its obligations to User, the Other Party will be liable for any loss or damage (including costs) directly or indirectly incurred by User as a result.
i. lf User agrees a fixed fee with the Other Party, User may nonetheless increase the fee at any time without the Other Party being entitled to terminate the contract on that basis, if the fee increase results from a power conferred or an obligation imposed by law, or from a rise in commodity prices, wages, etc., or other circumstances that could not be foreseen at the time when the contract was entered into.
j. User will not be bound by an offer or quotation if the Other Party can reasonably be
expected to understand that the offer or quotation, or any part of it, contains an
obvious mistake or typing error.
k. The prices quoted in an offer or quotation are exclusive of VAT and other government-
levied taxes, and exclusive of any costs incurred in connection with the contract including travel and accommodation expenses and shipping and administrative costs, unless otherwise indicated.
l. User will not be bound by the acceptance of an offer or quotation, if such acceptance
differs from the offer or quotation (whether or not on minor points). ln such cases, no
contract will come into existence on the basis of such acceptance, unless User
m. A composite quotation will not oblige User to perform part of the project at a
proportional part of the price quoted. Offers or quotations do not automatically apply
to future orders.
5. Performance and changes; Duration of contract for the supply of services
a. User will perform the contract, or arrange for the contrad to be performed, to the
best of its knowledge and ability, with good raftsmanship and according to state-of- the-art practices.
b. lf and to the extent required for the proper performance of the contract, User may have certain work carried out by a third party.
c. The Other Party is responsible for ensuring that User is provided in a timely fashion with all such information as User may require or which the Other Party should reasonably understand to be necessary for the performance of the contract. lf the information necessary for the performance of the contract is not supplied to User in a timely fashion, User may suspend performance of the contract and/or charge the Other Party the extra costs arising from the delay at the usual rates.
d. User will not be liable for loss or damage of any nature arising from User's reliance on incorrect and/or incomplete information furnished by the Other party, unless User can be expected to have been aware of such inaccuracy or incompleteness.
e. lf parties agree that the contract will be performed in stages, User may suspend performance of parts of the contract falling within the scope of the next stage until such time as the Other Party has approved the results of the previous stage in writing.
f. lf it turns out during the performance of the contract that, in order for the contract to be performed properly, changes should be made to the work or additional work should
be carried out, parties will adjust the contract accordingly in mutual consultation and in a timely fashion.
g. lf parties agree to make a change or an addition to the contract, this may affect the time of completion of the work. User will notify the Other Party of any such delay as soon as possible.
lf the change or addition to the contract has any financial and/or qualitative consequences, User will so notify the Other party in advance.
ln such cases, if a fixed fee was agreed, User will also indicate to what extent the change or addition to the contract will lead to the fee being exceeded.
h. ln derogation from Clause 4 (h), User will not be able to charge additional expenses if the change or addition is the result of circumstances for which it can be held responsible.
i. The contract will be entered into for an indefinite period of time, unless parties expressly agree otherwise in writing.
j. lf the price increase exceeds 10%, other than as a result of a change to the contract, within three months after the contract was entered into, and Chapter 6.5.3 of the Dutch Civil Code so entitles the Other Party, the Other Party may terminate the contract by means of a written notification, unless User is still willing to carry out the contract in accordance with what had originally been agreed, or the price increase results from a power conferred or an obligation imposed on User by law, or parties agreed that delivery would take place more than three months after the purchase.
k. The contract between User and the Other Party will be entered into for an indefinite period of time, unless the nature of the contract dictates otherwise or parties expressly agree otherwise in writing.
l. lf a deadline is quoted or agreed for completion of certain work or the delivery of certain goods, this will not be a strict deadline. This means that if User misses the deadline, the Other Party will need to send User written notice of default, allowing User a reasonable grace period in which to perform the contract.
a. Both parties have an obligation to keep confidential all confidential information which they receive from one another or any other source. lnformation will be considered to be confidential if the other party so indicates or if this is clear from the nature of the information.
7. intellectual property
a. Without restricting the generality of Clause 6 of these Terms and Conditions, User reserves its rights and powers under the Dutch Copyright ActlAuteurswet).
b. Unless expressly agreed otherwise in writing, all documents supplied by User, such asreports, opinion, designs, sketches, drawings, software, etc., are intended for use by the Other Party only. No part of such documents may be reproduced, published or disclosed to a third party without User's prior permission.
c. User also reserves the right to use the increase in knowledge gained during the performance of the work for other purposes, to the extent that this does not involve the disclosure of confidential information to a third party.
8. Suspension, termination for cause, and early termination
a. User may suspend performance of its obligations or terminate the contract for cause
i. the Other Party fails to meet its obligations under the contract, or fails to do so fully or in a timely fashion;
ii. User becomes aware of any circumstances after the contract was entered into that provide a valid reason to fear that the Other Party will not be able to meet its obligations;
iii. the Other Part was asked, on entering into the contract, to provide security for the performance of its obligations under the contract and no such security or insufficient security has been provided;
b. lf User cannot be expected to perform the contract on the terms originally agreed because of a delay on the part of the Other Party, User may terminate the contract. c. User may also terminate the contract if circumstances have arisen of a nature that makes it impossible to perform the contract, or on the basis of which the User cannot reasonably be required to perform the contract unchanged.
c. User may also terminate the contract if circumstances have arisen of a nature that makes it impossible to perform the contract, or on the basis of which the User cannot reasonably be required to perform the contract unchanged.
d. lf the contract is terminated for cause, all amounts that the Other Party owes User will immediately become payable on demand. lf User suspends performance of its obligations, User will continue to have the rights conferred on User by the law and the contract.
e. lf User suspends its obligations or terminates the contract for cause, User will be under no obligation whatsoever to reimburse any loss or damage arising as a result, howsoever caused.
f. lf the Other Party is responsible for the contract being terminated for cause, User will be entitled to be reimbursed for any loss or damage, including costs, directly or indirectly suffered as a result.
g. lf the Other Party fails to meet its obligations under the contract and its failure justifies termination for cause, User may terminate the contract with immediate effect without being required to pay compensation or damages, with the User being required to pay compensation or damages for breach of contract.
h. lf the contract is terminated early by User, User will, in consultation with the Other Party, arrange for any outstanding work to be transferred to a third party, unless the Other Party is liable for the termination. lf such transfer of work causes User to incur any extra costs, these costs will be charged to the Other Party. The Other Party must pay these costs within the payment deadline stated, unless User indicates otherwise.
i. lf the Other Party is liquidated or granted a suspension of payments or declared bankrupt, or an application for its bankruptcy or a suspension of payments is filed, or all or any part of the Other Party's assets are attached - unless the attachment is lifted within three months - or the Other Party becomes subject to a debt rescheduling arrangement or there are any other circumstances preventing it from disposing of its assets freely, User may terminate the contract with immediate effect or cancel the order or contract, without being required to pay compensation or damages. ln such cases, all amounts that the Other Party owes User will immediately become payable on demand.
j. lf the Other Party cancels all or any part of an order already placed, all materials ordered or made available for such order, plus the associated costs of supply, disposal or delivery, and the working hours scheduled to perform the contract, will be charged to the Other party in full.
k. Either party may terminate the contract in writing if the contract is for advisory services and no maintenance work or delivery of goods is involved. ln such cases, parties must observe a 14-day notice period. lf the services are already being put in place, the activities already undertaken and those still to be undertaken until the end of the notice period will be charged to the Other Party in the manner agreed at the time when notice was given.
9. Force majeure
a. ln addition to the definitions and interpretation given by statute law and case law, for the purposes of these Standard Terms and Conditions, force majeure means all foreseeable and unforeseeable external causes beyond Users control preventing User from meeting its obligations. Force majeure includes any strike action at Users premises.
b. User may also invoke force majeure if the circumstance preventing (continued) performance first occurs after the time when User should have met its obligation.
c. User's obligations will be suspended for as long as the event of force majeure continues. lf the period during which User is unable to perform its obligations due to force majeure exceeds 2 months, either party may terminate the contract for cause, without any obligation to pay damages.
d. lf, at the time when the force majeure event occurs, User already performed part of its obligations or is able to perform part of its obligations, User may invoice the part already performed or capable of being performed separately, and the Other Party will be required to pay the invoice as if it were a separate contract.
10. Payment and debt collection costs
a. Payment must be made within 30 days of the invoice date, in a manner indicated by User and in the currency of the invoice, unless otherwise indicated by User in writing.
User may send periodic invoices.
b. lf the Other Party defaults on all or any part of its obligations, all reasonable out-of-court expenses incurred in collecting any due amounts will be charged to the Other Party. The Other Party will owe as a minimum:
i. on the first EUR 6,500: 15%
ii. on any excess amount up to EUR 13,000: 10%
iii. on any excess amount up to EUR 32,500: 8%
iv. on any excess amount up to EUR 130,000: 5%
v. on any excess amount: 3%
c. lf the Other Party defaults on its obligations, all reasonable out-of-court expenses incurred in collecting any due amounts will be charged to the Other Party. Such out-of- court expenses will be calculated according to the method generally applied by Dutch debt collection agencies, which is currently the calculation method described in the "Voorwerk ll" Report. However, if User reasonably incurs higher debt collection expenses, the actual expenses will be eligible for reimbursement. Any judicial or enforcement expenses will also be recovered from the Other Party. The Other Party will owe interest on the debt collection expenses payable.
d. User may use the payments made by the Other Party first towards its expenses, then towards any interest due, and finally towards the principal and accrued interest.
e. User may refuse an offer to pay, without this causing User to be in default, if the Other Party indicates a different order of allocation of such payment. User may refuse full repayment of the principal if the associated interest and collection expenses are not paid at the same time.
f. The Other Party will in no event be entitled to offset any amount it owes User against any amount which User owes the Other Party.
g. Any objection made to the invoice amount will not suspend the Other Party's payment obligation. lf Chapter 6.5.3 (Sections 231 to 247 of Book 5 of the Dutch Civil Code) is unavailable to the Other Party, the Other Party will not be entitled to suspend payment of an invoice for a different reason either.
11. Retention of title
a. All goods delivered by User under the contract will remain User's property until the Other Party has properly performed all of its obligations under the contract(s) with User.
b. Goods delivered by User subject to this retention-of-title clause must not be resold or used as a means of payment. The Other Party is not authorised to create a pledge over or otherwise encumber such goods.
c. ln all cases, the Other Party must do what it can reasonably be excepted to do in order to secure User's property rights.
d. lf a third party attaches any goods title to which has been retained, or wishes to create or assert any rights with regard to such goods, the Other Party must so notify User immediately.
e. The Other Party must take out insurance to cover goods title to which has been retained against fire, explosion and water damage and theft, and submit the insurance policy to User for inspection upon request. User will be entitled to the insurance proceeds, if paid. ln so far as necessary, the Other Party agrees to assist User in taking any action which may be necessary or advisable in that regard.
f. lf User wishes to exercise its property rights as referred to in this clause, the Other Party agrees to grant User or any third party appointed by User unconditional and irrevocable permission to enter all premises where User's goods are located so as to take possession of such goods.
12. Warranties, investigation and complaints, limitation period
a. The goods to be delivered by User will meet the usual standards and requirements which may reasonably be expected at the time of delivery if put to their normal intended use in the country where they are delivered. The warranty provided in this clause applies to goods intended for use in the agreed country of delivery. lf goods are used outside the country of delivery, the Other Party itself must check whether the goods are suitable for use there and meet the relevant requirements. ln such cases, User may issue different warranty and other terms and conditions for the goods to be delivered or the work to be carried out.
b. The warranty provided in Clause 12 (a) remains valid for one year after delivery, unless the nature of the goods dictates otherwise or parties have agreed otherwise. lf the warranty issued by User is for an item manufactured by a third party, such warranty will be limited to the warranty which the third party issues for that particular item, unless otherwise stated.
c. No warranty applies if a defect was caused by or arose from inexpert use or inappropriate use or use after the use-by date or incorrect storage or maintenance by the Other Party and/or a third party, after the Other Party or such third party made or attempted to make changes to any of the goods, affixed other items to them that should not have been affixed, or processed any of the goods other than in the prescribed manner, without User's written permission.
d. Nor will the Other Party be able to rely on the warranty if the defect was caused by or arose from circumstances beyond User's control, including weather conditions (including, without limitation, extreme rainfall or temperatures), inadequate supervision of the goods by the Other Party and/or its staff and/or any third party engaged by the Other Party, etc.
e. The Other Party must inspect the goods delivered, or arrange for the goods to be inspected, immediately after the goods have been made available to the Other Party or the relevant work has been completed. ln particular, the Other Party should check whether the quality and/or quantity of the goods delivered conforms to what has been agreed and meets the relevant requirements agreed by parties, Any visible defects must be reported to User in writing within seven days of delivery. Any hidden defects must be reported to user in writing promptly, but no later than within fourteen days after they were discovered. The report must give as detailed a description of the defect as possible, so as to allow User to respond adequately. The Other Party must allow User an opportunity to investigate the complaint or to arrange for the complaint to be investigated.
f. Submitting a complaint on time will not release the Other Party from its payment obligation. ln such cases, the Other Party will also continue to have an obligation to take receipt of and pay for the other goods ordered.
g. lf a defect is reported late, the Other Party will no longer be entitled to a repair, replacement or compensation.
h. lf an item is found to be defective and the complaint was submitted on time, User will, at its discretion, replace the item or arrange for it to be repaired or pay compensation to the Other Party within a reasonable time after the item was returned or, if the item cannot reasonably be returned, after a written notification to that effect from the Other Party. ln the event of a replacement, the Other Party must return the replaced item to User and transfer ownership of the item to User, unless User indicates othenarise.
i. lf a complaint is found to be invalid, the associated costs, including investigation costs, incurred by User will be charged to the Other Party in full.
j. Once the warranty period has expired, all repair or replacement costs, including administrative, shipping and delivery costs, will be charged to the Other Party.
k. ln derogation from the statutory limitation periods, all actions and defences against User or a third party engaged by User to perform the contract are subject to a limitation period of one year.
a. lf User is liable, its liability will be limited as provided in this clause.
b. User is not liable for loss or damage of any nature arising from Use/s reliance on incorrect and/or incomplete information supplied by or on behalf of the Other Party. c. lf User is liable for any loss or damage, its liability will be limited to no more than twice the amount invoiced for the order, that is to say, that part of the order for which it is held liable.
d. ln all cases, User's liability will be limited to the amount paid by its insurance company. e. User will only be liable for direct loss or damage.
f. Direct loss or damage means exclusively the expenses reasonably incurred in identifying the cause and extent of the loss or damage, insofar as such identification concerns loss or damage within the meaning of these Terms and Conditions, any expenses reasonably incurred in having Use/s defective goods or services conform to the contract, in so far as these can be attributed to User, and any expenses reasonably incurred in preventing or minimising the loss or damage, in so far as the Other Party demonstrates that such expenses have led to the direct loss or damage as referred to in these Terms and Conditions being minimised.
g. Nor is User liable for loss or damage caused by or arising from circumstances beyond Use/s control, including weather conditions (including without limitation, extreme rainfall or temperatures), inadequate supervision of the goods by the Other Party and/or its staff and/or any third party engaged by the Other party, etc.
h. ln derogation from the above provisions of this clause, if the contract is for the delivery of services over a period in excess of six months, Use/s liability is limited further to the fee or payments due for the last six months, or the prorated part of the fee originally agreed for those six months.
i. User will in no event be liable for indirect loss or damage, including consequential damage, lost profits, missed savings, or loss or damage arising from a business interruption.
j. The limitations of liability provided in this clause do not apply if the loss or damage is caused by an intentional act or omission [opzet] or gross negligence [grove schuld] on the part of User or its managerial staff.
14. Transfer of risk
a. The risk of loss, damage or reduced value will pass to the Other Party at the time when the goods are brought within the Other Party's control.
a. The Other Party must indemnify User from any claims by third parties for loss or damage suffered in connection with the performance of the contract and the cause of which is attributable to a party other than User.
b. lf User is called to account by a third party over any such loss or damage, the Other Party must assist User in and out of court and promptly do all such things as can be expected of the Other Party in such cases. lf the Other Party fails to take adequate measures, User may take such measures itself without any notice of default being necessary. All costs and losses suffered by User or any third party as a result will be for the Other Party's account and risk.
16. Governing law and disputes
a. All legal relationships to which User is a party are governed exclusively by the laws of the Netherlands, even if all or any part of an obligation is performed abroad or if the other party to the legal relationship is based abroad. The applicability of the UN Convention on Contracts for the lnternational Sale of Goods is excluded.
b. The courts in the place where User is registered have exclusive jurisdiction to deal with any dispute, unless mandatory law prescribes otherwise. User may nonetheless submit a dispute to any court of competent jurisdiction.
17. Other language versions
a. A translation of these Terms and Conditions may be made available to the Other Party. ln all cases in which there is any ambiguity or conflict between the translation and the original Dutch version, the original Dutch version will prevail.
18. Amendments and source
a. These Terms and Conditions have been filed with the Chamber of Commerce in the Netherlands.
b. The latest version, or the version applicable at the time when the contract was entered into, applies in allcases.