General Terms and Conditions of Sale and Delivery of B.V. Bureau Van Borselen, formerly Ingenieursbureau Van Borselen, June 2022
Clause 1 – Applicability of the General Terms and Conditions
These general terms and conditions apply to every offer, quotation and every contract between B.V. Bureau Van Borselen, formerly Ingenieursbureau Van Borselen (“Van Borselen”) and a purchaser of Van Borselen ‘s goods (items) and/or services (“Customer”) to the extent the parties do not deviate from these general terms and conditions expressly and in writing.
The applicability of any existing general terms and conditions, of purchase or otherwise, by whatever name, are explicitly rejected and thus do not apply to any contract between the Customer and Van Borselen.
To the extent references are made to a Customer in these general terms and conditions, such references must be understood to mean the parties with which Van Borselen concludes one or more contracts regarding the delivery of goods and/or services.
Clause 2 – Quotations
Quotations provided by Van Borselen are free of obligation unless they contain a term for acceptance. If a quotation includes an obligation-free offer and that offer is accepted by the Customer, Van Borselen will be entitled to revoke the offer within two business days after the Customer ‘s acceptance. Unless indicated otherwise, the prices stated in the quotation are exclusive of VAT.
Van Borselen cannot be bound by its quotations and/or offers if the quotations and/or offers, or any part thereof, contain an obvious mistake and/or clerical error.
Clause 3 – Delivery
Unless agreed otherwise, delivery will be made carriage paid to an address within the Netherlands. If “Incoterm” delivery is agreed, then delivery will generally be made ex works unless an express agreement to the contrary has been made. The most recent version of the Incoterms always applies.
The Customer is obliged to accept the items purchased when they are delivered to it or when they are made available to the Customer pursuant to the contract. If the Customer refuses or neglects to provide information or instructions that are required for delivery, the relevant items will be stored at the Customer ‘s risk. In that case, the Customer will owe all additional costs, including at least the storage costs.
3. An agreed delivery date will not constitute a deadline unless expressly agreed otherwise. Therefore, if a delivery is made late, the Customer must serve Van Borselen with a notice of default and afford Van Borselen a reasonable term within which it can still meet its obligations.
Clause 4 – Partial deliveries
Van Borselen is authorised to make partial deliveries of the goods sold. If the goods are delivered in partial deliveries, Van Borselen will invoice each delivery separately and these general terms and conditions will also apply to those partial deliveries.
Clause 5 – Technical requirements
The items delivered by Van Borselen will satisfy the technical requirements or standards imposed by the applicable Dutch or European legislation. The items delivered will only have to meet technical requirements that deviate from that legislation if the Customer informs Van Borselen of those deviating requirements upon concluding the contract and Van Borselen affirms in writing that the items to be delivered will satisfy the deviating technical requirements.
Clause 6 – Samples, models and examples
If Van Borselen displays or provides a model, sample or example, the presumption will be that it is being displayed or provided for indicative purposes only; the items to be delivered may deviate from the sample, model or example, unless an express statement was made that the items delivered would conform to the sample, model or example that has been displayed or provided.
Clause 7 – Warranty
Van Borselen warrants that the items it delivers will be free from design, material or manufacturing defects for a period of twelve months after delivery.
If an item is found to contain a design, material, or manufacturing defect, the Customer will be entitled to have that item repaired. Van Borselen may opt to replace the item if there are objections to a repair. The Customer will only be entitled to replacement if the item cannot be repaired. The defective item must be sent carriage paid; Van Borselen will bear the expense of return transport.
The warranty will not apply if the damage is a consequence of the improper treatment of the item. The item will be considered to have been treated improperly in any case if:
the items delivered have been treated unprofessionally or inexpertly by the Customer, its staff or third parties, or if the items have been subjected to changes or repairs or have had any other work performed on them;
the items have been used contrary to their agreed use and requirements;
a defect is the result of the unsoundness of materials or parts provided by the Customer or third parties;
the Customer, its staff or third parties do not give Van Borselen itself the opportunity to verify and/or repair the defect identified.
The repairs performed by Van Borselen will be guaranteed for a term of three months after completion in accordance with the provisions of paragraphs 1 through 3, above.
The Customer ‘s warranty- and guarantee-related claims included in this clause will lapse if the Customer acts contrary to the provisions laid down in Clause 8 of these general terms and conditions.
Clause 8 – Defects: term for lodging complaints
The Customer must inspect, or ensure the inspection of, the items purchased, either upon delivery or as soon as possible thereafter. The Customer must check whether the delivered goods comply with the agreement, namely:
whether the correct items have been delivered;
whether the items delivered correspond with what was agreed in terms of quantity (e.g. number and volume);
whether the items delivered meet the agreed quality requirements or – in the absence of such – the requirements that can be imposed in the context of ordinary use and/or for commercial purposes.
If any visible defects or deficits are observed, the Customer must notify Van Borselen of same within 8 (eight) days after delivery.
The Customer must notify Van Borselen in writing of any invisible defects within 2 (two) days after their discovery, but by no later than 1 (one) month after delivery.
The notification must contain as detailed a description as possible of the defect so that Van Borselen can respond adequately. The Customer must give Van Borselen an opportunity to investigate a complaint or to have it investigated.
The receipt of a timely complaint from a Customer will not suspend the Customer ‘s payment obligation. In that case, the Customer will be required to accept delivery of, and pay for, any other items ordered.
If the Customer has concluded the purchase agreement with Van Borselen subject to the reservation that the items delivered must function properly, that reservation will be considered to have lapsed if Van Borselen is not notified of possible defects in the manner and within the time periods set forth in this clause.
Clause 9 – Retention of title
Van Borselen will retain title to the items it delivers until the Customer has performed all of the following obligations pursuant to the purchase agreement concluded with Van Borselen: the consideration corresponding to
- the item(s) that have been or will be delivered;
- any claims stemming from the Customer ‘s failure to perform one or more purchase agreements.
Items delivered by Van Borselen which are subject to retention of title pursuant to paragraph 1 may only be resold in the context of the normal course of business. Furthermore, the Customer is not authorised to encumber the items with a right of pledge or any other right.
If the Customer fails to meet its obligations or if there is well-founded fear that they will not do so, Van Borselen will be entitled to retrieve, or arrange the retrieval of, the items delivered that are subject to the retention of title referred to in paragraph 1 from the Customer or third parties who are keeping the items on the Customer ‘s behalf. The Customer is obliged to lend its full cooperation in that context, on pain of a penalty of 10% of the amount owed per day.
If third parties wish to establish or exercise any right to the items delivered subject to retention of title, then the Customer will be obliged to inform Van Borselen as soon as may be reasonably expected.
The Customer undertakes that it will, at Van Borselen ‘s first request:
insure the items delivered subject to retention of title and keep them insured against fire, explosion and water damage and against theft, and provide the policy of this insurance for inspection;
pledge to Van Borselen, in the manner prescribed by Article 3:239 of the Dutch Civil Code, all claims which the Customer has against insurers with regard to the items delivered subject to retention of title;
pledge to Van Borselen, in the manner prescribed by Article 3:239 of the Dutch Civil Code, the claims which the Customer acquires in respect of its own customers when reselling items delivered by Van Borselen subject to retention of title;
consider the items delivered subject to retention of title to be the property of Van Borselen;
cooperate in other ways with all reasonable measures which Van Borselen wishes to take to protect its title to the items and which do not unreasonably hinder the Customer in the ordinary course of its business.
Clause 10 – Prices
All prices are stated in euros unless indicated otherwise. All prices are exclusive of VAT, other taxes and levies, and government-imposed duties.
If one or more of the costs are subject to increase after the offer date, even if such is attributable to foreseeable circumstances, Van Borselen will always be entitled – even after the contract is concluded and as long as delivery has not yet been made – either to increase the agreed price accordingly or to dissolve all or part of the contract without any judicial intervention being required and without entitling the Customer to any claim for compensation.
Except to the extent expressly stated otherwise, the prices given are exclusive of the costs associated with assembly and/or testing and/or commissioning.
Van Borselen uses price lists, which are periodically updated, containing the prices of the Van Borselen product range and the terms and conditions of delivery which Van Borselen observes in addition to these general terms and conditions. A copy of the currently valid price list will be sent to the Customer free of charge upon request. If a price list contains conditions that conflict with one or more provisions of these general terms and conditions, the provision(s) of these general terms and conditions will prevail.
Van Borselen may charge the price in effect upon the delivery date in accordance with the price list it deems applicable on that date. If the price increases by more than 10 per cent, the Customer will be entitled to dissolve the contract. Van Borselen will not be entitled to increase the price if it does not deliver by the agreed delivery date.
Clause 11 – Transfer of risk
The risk associated with the items delivered, and thus the risk relating to loss, damage or decrease in value, will transfer to the Customer at the moment the items are delivered to the Customer.
Clause 12 – Payment
Payment must be made within thirty days after the invoice date.
The Customer will be in default after a period of 30 (thirty) days has elapsed after the invoice date; from the point of the Customer ‘s default onwards, the Customer will owe the due and payable amount as well as interest at the statutory rate plus 2 (two) per cent.
If the Customer defaults or fails to perform one or more of its obligations, it will bear all the costs Van Borselen reasonably incurs, either at law or otherwise, to recover its claim.
If the Customer goes into liquidation, is declared bankrupt or is granted a suspension of payments, the claims against the Customer will become immediately due and payable.
In that case, the Customer will only be able to rely on set-off if Van Borselen acknowledges the Customer ‘s claim or if the validity of that claim can easily be established.
Payments made by the Customer will always be applied first to settle any interest and costs owed and second to settle the due and payable invoices that have been outstanding the longest, even if the Customer states that the payment relates to a later invoice.
Clause 13 – Credit penalty
Van Borselen is entitled to invoice a credit penalty mark-up of 2 (two) percent, which amount will not be owed if payment is made within thirty days after the invoice date.
Clause 14 – Liability
Van Borselen can only be held liable for a direct loss incurred by the Customer if the Customer demonstrates that this loss is the direct and exclusive result of a failure to perform that can be attributed to Van Borselen, all of this with due observance of the provisions of paragraph 2 of this clause.
Van Borselen can never be held liable for a direct loss incurred by the Customer and/or third parties that results from: A. incorrect or incomplete information provided by the Customer before, during, or after entering into the contract with Van Borselen; B. circumstances referred to in Clause 7(3); C. defects in the item that result from normal wear and tear; D. a defect in an item or a failure to perform that is the result of a situation of force majeure. Without prejudice to the statutory provisions on force majeure, force majeure is deemed to include one or more of the following situations: war, mobilisation, epidemics, riots, flooding, fire, strikes, serious disruption of the commercial operations within Van Borselen ‘s business, disruption in the supply of stocks, raw materials, auxiliary materials, etc., traffic obstructions, import or export problems, and/or other measures imposed by a competent government authority which entail that the contract can no longer reasonably be expected to be performed.
Van Borselen can never be held liable for indirect loss incurred by a Customer and/or third parties, including – but not limited to – consequential loss, operating loss, individual loss or harm, lost profit, loss due to business interruptions, and loss or harm caused by an intentional act or omission or recklessness on the part of agents of Van Borselen.
The total amount in direct loss that Van Borselen will compensate will at all times be limited to the amount of the items and/or services pursuant to the contract prior to the occurrence of the harmful event or, if one of the following amounts is lower, the lower of (1) the maximum amount paid out by Van Borselen ‘s insurer in the relevant case, or (2) EUR 50,000.
The Customer indemnifies Van Borselen against all loss or harm incurred by third parties in relation to the items and/or services supplied by Van Borselen, including – but not limited to – harm or loss based on Van Borselen ‘s infringement on third-party rights – including – but not limited to intellectual property rights – and/or harm or loss due to product liability as a consequence of a defect in the item which the Customer delivered to a third party and which constitutes part of the item delivered by Van Borselen, except if and to the extent that the Customer proves that the loss or harm was caused solely by the item which Van Borselen delivered to the Customer.
The Customer is at all times responsible and liable for meeting the satisfying the statutory and related permits and requirements regarding, among other things – but not exclusively – construction requirements, requirements for usage and design and other technical requirements or industrial standards, all in the broadest sense of the terms, and to the extent that these relate to the items and/or services delivered by Van Borselen pursuant to the contract.
The limitations of liability set forth in these general terms and conditions will not apply in the event of an intentional act or omission or deliberate recklessness on the part of Van Borselen.
Clause 15 – Dissolution of the contract
1. Van Borselen will be entitled to dissolve the contract with the Customer, or the part of the contract that has not yet been performed, by registered letter with immediate effect, without any judicial intervention being required and without becoming liable to pay compensation for any harm or loss whatsoever, without prejudice to Van Borselen ‘s right to claim full reimbursement of costs and losses from the Customer if:
- the Customer – a natural person – dies;
- the Customer applies for a suspension of payments or is unable to satisfy its due and payable debts;
- the Customer files for bankruptcy or is declared bankrupt;
- the Customer ‘s business is shut down or liquidated or the Customer transfers its business;
- all or part of the Customer ‘s company is dissolved;
- there is substantial change in the shareholder and/or voting ratios within the Customer ‘s business;
- a significant part of the Customer ‘s assets have been attached and that attachment is not lifted within a reasonable period of time;
- the Customer fails to perform any obligation it has to Van Borselen pursuant to the contract, or fails to do so in full, properly or in good time, despite a request to that end, and fails to rectify that failure to perform within seven (7) days after such request.
2. In addition to the provisions laid down in Clause 15(1), both the Customer and Van Borselen – after a situation of force majeure arises on Van Borselen ‘s side as meant in Clause 14(2) has lasted more than six months – may dissolve the contract by registered letter, but such dissolution will exclusively encompass the obligations that have not yet been performed.
In that case, the parties will not be entitled to claim compensation for any losses they have incurred or will incur as a result of the dissolution.
3. All claims which Van Borselen may have or acquire in a case such as the one referred to in this clause will become immediately due and payable in full.
4. In the situations as described in paragraphs 1 and 2 of this clause, Van Borselen will be entitled, without prejudice to its other rights, to suspend performance of all of its obligations pursuant to one or more contracts concluded with the Customer.
5. A dissolution within the meaning of this clause will not result in the termination of any of Van Borselen ‘s rights which, by their nature, are intended to continue.
Clause 16. Assignment of rights and obligations
Absent Van Borselen ‘s prior written consent, the Customer is not permitted to assign, pledge or otherwise transfer any rights or obligations pursuant to the contract, or the ownership thereof, to a third party.
2 Van Borselen is entitled to assign the contract, or any of the rights and/or obligations pursuant thereto, to a group company (within the meaning of Article 2:24b DCC). To the extent necessary, the Customer grants its permission for such based on Article 6:159 DCC.
Clause 17: Confidentiality
1. Both parties are obliged to keep confidential all information that they have obtained from each other or another source in the context of the Agreement. Information is deemed confidential if one party deems it to be so or if this ensues from the nature of the information.
2. Without prejudice to any provisions of mandatory law, if the supplier is obliged, based on a statutory provision or a court order, to also provide confidential information to third parties designated by law or the competent court and the supplier cannot rely on a right to refuse to give evidence that is provided for by law or acknowledged or permitted by a competent court, then the supplier will not be obliged to compensate any loss or provide any indemnification and the principal will not be entitled to dissolve the contract.
Clause 18: Applicable Law
Every contract between Van Borselen and the Customer is subject to Dutch law, even if all or part of an obligation is performed abroad or the party involved in the legal relationship resides abroad. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
Disputes will be submitted for adjudication exclusively to the competent court in The Hague.
Clause 19: General provision
If one or more of the provisions of the contract with the Customer prove to be legally invalid, the remaining provisions of the contract will remain in full force and effect. In such a case, any invalid provisions will be replaced by provisions which reflect as closely as possible in a legally valid manner the intention(s) of both parties and the commercial result they envisaged.