Terms & Conditions – Cohose B.V. September 2020
Article 1 General
1. These terms and conditions are applicable on each offer, quotation and agreement between Cohose B.V., henceforth referred to as ‘User’, and a Counterparty, upon which User has deemed these terms and conditions as applicable, to the extent that parties did not deviate from these terms and conditions explicitly and in writing.
2. The present terms and conditions are also applicable for agreements with User, for the execution of which User must involve third parties.
3. These terms and conditions are likewise written for the employees of User and his managing board.
4. The applicability of any purchase or other conditions from the Counterparty will emphatically be rejected.
5. In the event that one or multiple determinations in these terms and conditions will at any point become null and void or be annulled, all remaining determinations in these terms and conditions will continue to apply. User and Counterparty will then enter into consultations to agree upon new determinations in order to substitute the annulled determinations, at which the goal and scope of the original determinations will be considered as much as possible.
6. In case of ambiguity regarding the explanation of one or more determinations of these terms and conditions, the explanation will need to take place in accordance with these determinations.
7. In case of a situation between parties which is not regulated in these terms and conditions, the situation will be assessed in the spirit of these terms and conditions.
8. Even in the event that User does not constantly require strict abidance to these terms and conditions, it does not mean that those determinations are not applicable, or that User should in any way lose the right to require the strict compliance of the determinations in other cases.
Article 2 Quotations and offers
1. All quotations and offers from User are without obligation, unless a deadline has been established in the quotation. A quotation or offer will expire if the product the quotation or offer refers to is no longer available.
2. User cannot be held accountable for his quotations or offers if the Counterparty can reasonably understand that the quotations or offers, or any part thereof, contain an apparent mistake or error.
3. The prices stated in the quotation or offer are excluding VAT and other charges by operation of law, any costs made under the agreement, including travel and accommodation, shipping and handling charges, unless otherwise indicated.
4. In the event that the acceptance (whether or not on minor points) deviates from the proposal included in the quotation or offer, User is not bound to it. The agreement will, corresponding to this deviation, not be agreed upon, unless otherwise indicated by User.
5. A composed estimate does not obligate User to execute part of the order at a corresponding part of the specified price. Offers or quotations do not automatically apply for future orders.
Article 3 Contract duration; delivery terms, execution and adaptation of agreement
1. The agreement between User and the Counterparty will be for an indefinite period, unless otherwise indicated by the nature of the agreement, or in case the parties explicitly and in writing agree otherwise.
2. If a deadline has been agreed upon for the finishing of certain activities or for the delivery of certain affairs, this is never a statutory limit. If a deadline is exceeded, the Counterparty will have to give the User written notice of default. A reasonable deadline must then be provided to User to still ensure the execution of the agreement.
3. If User requires data from the Counterparty for the execution of the agreement, the implementation deadline will not commence until the Counterparty has made these available to User.
4. Delivery is on the basis of ex-works. The Counterparty is obligated to accept the products after they have been made available to them. If the Counterparty refuses this or is negligent in giving information or instructions required for the delivery, User is entitled to store the products at the costs and risks of the Counterparty.
5. User has the right to have third parties perform certain activities.
6. User is entitled to execute the agreement in different phases and therefore invoice the executed parts separately.
7. If the agreement is executed in phases, User can suspend the execution of the parts that belong to the next phase until the Counterparty has approved the results of the previous phase in writing.
8. If during the execution of the agreement it turns out that for proper execution it is necessary to change or supplement the agreement, parties will timely and in mutual consultation proceed to adjust the agreement. If the nature, size or content of the agreement is altered, whether or not by request or indication of the Counterparty, the qualified authorities etcetera, which alters the agreement qualitatively and quantitatively, this can have consequences for what has been agreed upon originally. This may raise or lower the originally agreed upon sum. User will mention as much of this as possible in an estimate. An alteration of the agreement can cause change in the originally agreed upon deadline of the execution. The Counterparty accepts the possibility of alteration of the agreement, which includes the changes in price and deadline of execution.
9. If the agreement is modified, which includes an addition, User is entitled to first implement this, after the for User deemed qualified person and the Counterparty have agreed upon the given price and other conditions for this implementation, which includes the to be determined time upon which this implementation will take place. If this is not, or not immediately, implemented, this does not cause a breach of contract on User’s part, nor is it ground for the Counterparty to cancel the agreement. Without it being grounds of breach, User may reject a request to modify the agreement, if this might have consequences from the qualitative and/or quantitative perspective on the work to be undertaken or the products to be delivered from this framework.
10. If the Counterparty defaults on the proper fulfillment of that to which he is held by User, the Counterparty shall be liable for any damage (including costs) on the side of User, as a result, directly or indirectly.
11. If User agrees on a fixed price with the Counterparty, User shall still be entitled to increase this price at any time without the Counterparty being entitled to terminate the contract based on these grounds, if the price increase is due to a competence or obligation in accordance with the law or regulation, of if the cause is an increase in price of raw materials, salaries etc., or for other reasons which were not reasonably foreseeable at the time of signing the agreement.
12. If the price increase is not due to a modification of the agreement and is more than 10% and occurs within the first three months after the agreement has been signed, then only the Counterparty shall be entitled to terminate the agreement on grounds of Article 5, section 3 of Book 6 of the Dutch Civil Code, by means of a written statement, unless User is then still willing to execute the agreement based on the originally agreed terms, or if the price increase is a result of a competence or a legal obligation of User, or if it has been agreed upon that the delivery will occur after a period of longer than three months after the purchase has been made.
Article 4 Suspension, termination and mid-term cancelation of the agreement
1. User is authorized to suspend the fulfillment of the obligations or terminate the agreement, if:
- the Counterparty does not fulfill, not completely fulfill or does not in time fulfill the agreement;
- after the agreement has been signed, User becomes aware of circumstances which provide sufficient grounds for fearing that the Counterparty will not fulfill their obligation;
- the Counterparty has been requested to provide a guarantee of fulfillment of the agreed obligations and the guarantee is not forthcoming or is insufficient;
If due to a delay on the part of the Counterparty it is no longer possible to demand that User fulfills the agreement under the terms originally agreed; User is entitled to terminate the agreement.
2. Furthermore, User is entitled to terminate the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible, or if any other circumstances arise that are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected of User.
3. If the agreement is terminated, the claims of User on the Counterparty shall immediately be enforceable. If User suspends the fulfillment of the obligations, he shall continue to keep his legal and agreed rights.
4. If User decides to suspend or terminate, he is not obliged, under any circumstances, to pay any of the resulting damage and costs.
5. If the termination can be attributed to the Counterparty, User shall be entitled to compensation of the damage, which includes the costs, caused directly or indirectly.
6. If the Counterparty does not fulfill the obligations of the agreement and this breach justifies termination, User is then entitled to terminate the agreement effective immediately without any obligation on their part to pay any compensation or indemnification, whilst the Counterparty, under breach, shall be obligated to pay compensation and indemnification.
7. If the agreement is cancelled prematurely by User, User will, in deliberation with the Counterparty, take care of the transfer of the work that still should be performed to third parties. This applies, unless the termination can be attributed to the Counterparty. If the transfer of the work brings additional costs for User, the Counterparty will be charged for these costs. The Counterparty will be held to paying these costs within the mentioned term, unless otherwise indicated by User.
8. In the event of liquidation, of (application of) suspension of payment or bankruptcy, of seizure – if and insofar the seizure is not suspended within three months – chargeable to the Counterparty, of debt restructuring or any other circumstance due to which the Counterparty may no longer freely dispose of its assets, User is free to terminate the agreement effective immediately, or cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification. In this case, the demands of User on the Counterparty shall immediately be enforceable.
9. If the Counterparty cancels, partially or in full, a placed order, then the Counterparty will be charged for all the ordered products or prepared affairs, increased by any possible costs of sourcing, disposal and delivery and the time reserved for the execution of the agreement.
Article 5 Force majeure
1. User is not obliged to fulfill any obligation towards the Counterparty if he is prevented from doing so as a result of a circumstance which cannot be attributed to negligence, either by law, a legal act, or generally accepted view that it is attributable to him.
2. In these terms and conditions, in addition to what is included in the law and jurisprudence in this respect, force majeure is understood as being all external causes, foreseen or unforeseen, which User cannot influence, but which mean that User is unable to fulfill his obligations; work strikes within the company of User or third parties included. User also has the right to rely on force majeure if the circumstance that hinders (further) compliance of the agreement, occurs after User should have fulfilled his commitment.
3. During the period of force majeure, User can suspend the obligations of the agreement. If this period lasts for more than two months, then either party is entitled to terminate the agreement, without obligation to compensate the other party for damage.
4. Insofar as User, at the moment when force majeure occurs, has already partially fulfilled or will be able to fulfill his obligations from the agreement, and if the fulfilled or yet to be fulfilled part has independent value, User is entitled to invoice this fulfilled or yet to be fulfilled part separately. The Counterparty is obligated to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
1. Payment must occur within 14 days after the invoice date, in a manner indicated by User, in the currency used in the invoice, unless otherwise stated by User, in writing. User is entitled to invoice periodically.
2. If the Counterparty does not make a timely payment of an invoice, then the Counterparty will be legally in default. In this case, the Counterparty is required to pay a monthly interest of 3%, unless the legal interest rate is higher, in which case the legal interest rate is owed. The interest on the amount due shall be calculated from the moment that the Counterparty is in default, up until the moment of payment of the entire amount due.
3. User reserves the right to have payments made by the Counterparty extend first to the reduction of the costs and then to reduce the interest due and finally to reduce the capital sum and the accrued interest.
4. User may, without being in default, reject an offer of payment, if the Counterparty indicates a different order for allocating the payment. User may refuse the total payment of the capital sum if the interest due and accrued and the collection costs are not paid at the same time.
5. The Counterparty is never entitled to settlement of the amount owed to User.
6. Complaints regarding the amount of an invoice do not suspend the obligation to pay. The Counterparty, who is not entitled to appeal according to section 6.5.3 (Articles 231 to 247, Book 6 of the Dutch Civil Code), is not entitled to suspend payment of an invoice for any other reason either.
7. If the Counterparty is in breach regarding the (timely) fulfillment of their obligations, then all reasonable costs in obtaining extrajudicial fulfillment are for the account of the Counterparty. Extrajudicial costs will be calculated based on what is usual in Dutch debt collection practices at that time. However, if User has collected costs higher than those reasonably necessary, the actual costs disbursed can be reimbursed. Any possible judicial and executional costs will also be paid by the Counterparty. The Counterparty is also obligated to pay interest on the owed debt collection costs.
Article 7 Reservation of ownership
1. All supplied products by User within the framework of the agreement remain the property of User until the Counterparty has fulfilled all the obligations from the signed agreement(s) with User properly.
2. Products supplied by User, which in accordance with section 1 is subject to the reservation of ownership, may not be resold and may never be used as a means of payment. The Counterparty is not qualified to pawn the products included in the reservation of ownership, nor object in any other way.
3. The Counterparty is always obligated to do that which can be reasonably expected of them to ensure the safety of User’s property rights.
4. If third parties seize the products that were supplied under the reservation of ownership, or wish to establish or enforce rights on these products, then the Counterparty is obligated to notify User immediately.
5. The Counterparty is obligated to insure and keep insured against fire, damage caused by explosion or water, as well as theft and to have the policy of this insurance available for User’s inspection upon first request. In the event of a possible payment of the insurance, User is entitled to receive the amounts concerned. The Counterparty will in advance commit towards User that they will cooperate as much as possible to all that is (or may prove to be) needed or desired in this context.
6. In the event that User wishes to exercise the property rights mentioned in this article, the Counterparty will grant, in advance, their unconditional and irrevocable permission to User and to third parties appointed by User, to access all those areas where property of User is located and to reclaim them.
Article 8 Warranties, inspection and claims, statute of limitation
1. The products to be delivered by User comply with the usual requirements and standards that can reasonably be required at the time of delivery and for which they are intended when used normally in the Netherlands. The warranty mentioned in this article applies to products intended for use within the Netherlands. When used outside of the Netherlands, the Counterparty must verify whether the use of these products is suitable there and meets the required conditions. In this case, User can set different warranties and conditions for the products to be delivered or the work to be done.
2. The warranty mentioned in section 1 of this article is valid for a period of three days after delivery, unless the nature of the delivery requires otherwise or the parties have agreed otherwise. If the warranty given by User refers to a product which has been produced by a third party, then the warranty is limited to that which is provided by the producer of that product, unless otherwise indicated.
3. Any form of warranty will be cancelled if a defect occurs due to, or as a result of, unsuitable or improper use or use after the expiration date, unsuitable storage or maintenance by the Counterparty and/or by third parties if, without written permission by User, the Counterparty or third parties have made or attempted to make modifications to the product, attached other products to the product, which should not be attached to it, or if these have been modified in any way other than the prescribed way. Neither does the Counterparty have a right to claim a warranty if the defect has been caused by or is a result of circumstances User cannot influence, including weather conditions (such as for example, but not limited to, heavy rain or extreme temperatures), et cetera.
4. The Counterparty is obliged to inspect (or have someone inspect) the delivery immediately when the products are provided, respectively when the work has been carried out. Furthermore, the Counterparty shall inspect if the quality and/or quantity of what is delivered corresponds with what is agreed upon and complies with the terms those parties have agreed upon. Any visible defects must be reported to User, in writing, within seven days after delivery. Any non-visible defects must be reported to User, in writing, immediately upon discovery of the defect, or in any case no later than within fourteen days after discovery. The notification should include a description of the defect, as detailed as possible, so User is able to respond adequately. The Counterparty must give User the opportunity to inspect (or have someone inspect) a complaint.
5. If the Counterparty submits a timely complaint, this does not suspend their payment obligation. In that case the Counterparty remains obliged to purchase and pay for the other ordered products.
6. If a defect is not reported in time, the Counterparty shall not be entitled to repair, replacement or compensation.
7. If a product is proven to be defective and has been reported in a timely manner, User will, within reasonable term after receiving the defective products or, if returning these products is not possible, after receiving a written notice of the defect by the Counterparty, replace or ensure repair, or pay a replacement fee to the Counterparty for this product. In case of a replacement the Counterparty is obliged to return the product that needs to be replaced to User and provide ownership to User, unless User indicates otherwise.
8. If it is established that a complaint is unfounded, all the costs incurred, which includes the costs for inspection incurred by User, are entirely at the expense of the Counterparty.
9. After the warranty period has expired, all costs regarding repair or replacement, including administrative, shipping and transportation costs, shall be invoiced to the Counterparty.
10. Notwithstanding the legal statutes of limitation, the statute of limitation for all claims and defenses against User and the third parties involved in the execution of an agreement is one year.
Article 9 Liability
1. In the event of User being liable, this liability shall be limited to what has been arranged in this determination.
2. User is not liable for damage, of any kind, caused by the fact that User relied on incorrect and/or incomplete data supplied by or on behalf of the Counterparty.
3. If User is liable for any damage, the liability of User will be limited to a maximum of two times the invoice value of the order, at least to that part of the order to which the liability relates.
4. The liability of User will in all cases be limited to the amount paid out by their insurance company, when appropriate.
5. User is solely liable for direct damage.
6. Direct damage is solely understood as being the reasonable costs of determining 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 have the User’s deficient performance conform to the agreement, insofar as these can be attributed to User, and reasonable costs, incurred when trying to prevent or limit damage, insofar as the Counterparty can prove that these costs have led to limiting direct damage as intended in these terms and conditions.
7. User will not accept liability for indirect damage, which includes consequential damage, loss of profit, missed savings and damage due to business interruption.
8. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of User or his supervising subordinates.
Article 10 Transfer of risk
1. The risk of loss, damage or depreciation will be transferred to the Counterparty when products to the Counterparty, are brought under the control of the Counterparty.
Article 11 Safeguard
1. The Counterparty shall indemnify User for any possible claims by third parties who may suffer damage in connection to the execution of the agreement and of which the cause is attributable to parties other than User.
2. If for that reason User may be addressed by third parties, then the Counterparty is obliged to assist User both in and out of court and immediately do what can be expected of them in that case. Should the Counterparty stay in default when it comes to taking adequate measures, then User will, without notice of default, be entitled to take these measures himself. All costs and damage caused to User and third parties will fully be at the expense and risk of the Counterparty.
Article 12 Intellectual property
1. User reserves the rights and authorizations that belong to him under the Law on Intellectual Property (Auteurswet) and other intellectual laws and regulations. User has the right to use the knowledge acquired through execution of an agreement for other purposes, provided that no strictly confidential information of the Counterparty is made known to third parties.
Article 13 Applicable law and disputes
1. All legal relationships of which User is a party, are exclusively governed by Dutch law, even if a commitment will be completely or partially executed abroad, or if the party involved in the legal relationship resides there. The applicability of The Vienna Sales Convention is excluded.
2. The Court in the User’s place of business has exclusive jurisdiction to hear disputes, unless the law compellingly prescribes otherwise. Nevertheless, User remains the right to present the dispute to the Court deemed competent by law.
3. The parties shall only appeal to the Court after they have made every effort to settle a dispute by mutual agreement.
Article 14 Location and modification of the conditions
1. These terms and conditions have been filed at the Chamber of Commerce in Roermond.
2. The most recently filed version or the version that applied at the time of the establishment of the legal relationship with User, is always applicable.
3. The Dutch version of the terms and conditions is always leading for the interpretation thereof.