Terms and conditions
General
These conditions apply to every offer, quotation and agreement between the sole proprietorship Berger & Fromm, with registered office at Arendschelling 75 in Dronten, hereinafter referred to as: “Berger & Fromm”, and a Client to whom Berger & Fromm has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
These terms and conditions also apply to agreements with Berger & Fromm, for the execution of which Berger & Fromm must involve third parties.
The applicability of any purchasing or other conditions of the Client is expressly rejected.
If one or more provisions in these general terms and conditions are in any way If any provision of these general terms and conditions should be declared null and void or annulled in whole or in part at any time, the remainder of the provisions of these general terms and conditions shall remain fully applicable. Berger & Fromm and the Client will then enter into consultations in order to agree on new provisions to replace the void or annulled provisions, whereby the purpose and scope of the original provisions will be taken into account as much as possible.
If Berger & Fromm does not always strictly comply with these conditions does not mean that the provisions thereof do not apply, or that Berger & Fromm would in any way lose the right to demand strict compliance with the provisions of these conditions in other cases.
Quotations and offers
All quotations and offers from Berger & Fromm are without obligation, unless otherwise stated. offer a term for acceptance has been set. If no term for acceptance has been set, no rights can be derived from the offer or quotation in any way if the product to which the offer or quotation relates is no longer available in the meantime.
Berger & Fromm cannot be held to its quotes or offers if the Client may reasonably be expected to recognise that the quotations or offers, or a part thereof, contain an obvious error or mistake.
The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred under the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, Berger & Fromm is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless Berger & Fromm indicates otherwise.
A composite quotation does not oblige Berger & Fromm to perform a part of the assignment for a corresponding part of the stated price. Offers or quotations for individual orders do not apply to future orders.
Term and execution of agreements
The agreement between Berger & Fromm and the Client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
If for the performance of certain activities or for the delivery of If a term has been agreed or specified for certain matters, this is never a fatal term. If a term is exceeded, the Client must therefore give Berger & Fromm written notice of default. Berger & Fromm must be offered a reasonable term to still implement the agreement.
Berger & Fromm will execute the agreement to the best of its knowledge and ability and perform in accordance with the requirements of good workmanship. All this on the basis of the state of science known at that time.
Berger & Fromm has the right to have certain activities performed by third parties. The applicability of article 7:404, 7:407 paragraph 2 and 7:409 BW is expressly excluded.
If Berger & Fromm or third parties engaged by Berger & Fromm in If work is carried out under the assignment at the Client's location or a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.
Delivery of any physical goods will take place “ex warehouse” of Berger & Fromm. The Client is obliged to accept the goods at the time they are made available to him. If the Client refuses to accept or is negligent in providing information or instructions necessary for delivery, Berger & Fromm is entitled to store the goods at the expense and risk of the Client. The risk of loss, damage or depreciation is transferred to the Client at the time the goods are made available to the Client.
Berger & Fromm is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
If the agreement is executed in phases, Berger & Fromm may suspend the execution of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
The Client shall ensure that all data of which Berger & Fromm indicates that these are necessary or that the Client should reasonably understand that they are necessary for the execution of Machine Translated by Google of the agreement, are provided to Berger & Fromm in a timely manner. If the data required for the execution of the agreement are not provided to Berger & Fromm in a timely manner, Berger & Fromm has the right to suspend the execution of the agreement and/or charge the additional costs resulting from the delay to the Client at the then customary rates. The execution period does not commence until the Client has provided Berger & Fromm with the complete and correct data. Berger & Fromm is not liable for damage, of whatever nature, arising when Berger & Fromm has assumed incorrect and/or incomplete data provided by the Client.
If during the execution of the agreement it appears that for a If proper execution thereof is necessary to amend or supplement it, the parties will proceed to amend the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Client, the competent authorities, etc., is amended and the agreement is thereby amended in qualitative and/or quantitative terms, this may have consequences for what was originally agreed. As a result, the originally agreed amount may also be increased or decreased. Berger & Fromm will provide a price quote for this in advance as much as possible. An amendment to the agreement may also change the originally stated term of execution. The Client accepts the possibility of amendment to the agreement, including the amendment to the price and term of execution.
If the agreement is amended, including a supplement, Berger & Fromm is entitled to first implement it after approval has been given by the authorised person within Berger & Fromm and the Client has agreed to the price and other conditions specified for the implementation, including the time at which it will be implemented. Failure to implement the amended agreement or failure to implement it immediately does not constitute a breach of contract by Berger & Fromm and is no reason for the Client to terminate or cancel the agreement.
Without being in default, Berger & Fromm may request refuse to amend the agreement if this could have consequences in terms of quality and/or quantity, for example for the work to be carried out or the goods to be delivered in that context.
If the Client fails to properly fulfil its obligations towards Berger & Fromm, the Client shall be liable for all damage suffered by Berger & Fromm as a result, whether directly or indirectly.
If Berger & Fromm agrees a fixed fee or price with the Client, Berger & Fromm is nevertheless entitled at all times to increase this fee or price without the Client having to do so. Machine Translated by Google case is entitled to terminate 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, third-party services, etc. or on other grounds that were not reasonably foreseeable when entering into the agreement.
If the price increase is due to something other than a change in the If the agreement exceeds 10% and takes place within three months after the conclusion of the agreement, only the Client who is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by means of a written statement, unless Berger & Fromm:
is then still prepared to execute the agreement on the basis of what was originally agreed;
if the price increase results from an authority or a right of Berger & Fromm obligation under the law;
if it has been agreed that delivery will take place more than three months after the conclusion of the agreement; or
upon delivery of an item, if it has been agreed that delivery will take place more than three months after the conclusion of the agreement; three months after the purchase will take place.
Suspension, dissolution and interim termination
Berger & Fromm is authorized to suspend or terminate the fulfillment of the obligations to terminate the agreement in the following cases:
if the Client fails to fulfil the obligations under the agreement, fails to fulfil them in full or fails to fulfil them on time, circumstances that have come to Berger & Fromm's attention after the conclusion of the agreement give it good reason to fear that the Client will not fulfil its obligations;
if the Client was requested to provide security for the fulfilment of its obligations under the agreement when the agreement was concluded and this security is not provided or is insufficient; and
if, due to the delay on the part of the Client, Berger & Fromm can no longer be expected to fulfil the agreement under the originally agreed conditions.
Furthermore, Berger & Fromm is authorized to terminate the agreement if circumstances arise which are of such a nature that compliance with the agreement is impossible or if other circumstances arise which are of such a nature that Berger & Fromm cannot reasonably be expected to maintain the agreement unchanged.
If the agreement is terminated, Berger & Fromm's claims against the Client become immediately due and payable. If Berger & Fromm suspends performance of its obligations, it retains its rights under the law and the agreement.
If Berger & Fromm suspends or terminates the agreement, it will not be liable in any way liable to pay compensation for damage and costs incurred in any way as a result.
If the termination is attributable to the Client, Berger & Fromm is entitled to compensation for the damage, including the costs, directly and indirectly incurred as a result.
If the Client fails to fulfil its obligations under the agreement and this failure to fulfil justifies termination, Berger & Fromm is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any damages or compensation, while the Client is obliged to pay damages or compensation on the grounds of breach of contract.
If the agreement is terminated prematurely by Berger & Fromm, Berger & Fromm will, in consultation with the Client, ensure the transfer of work still to be performed to third parties. This unless the termination is attributable to the Client. If the transfer of the work entails additional costs for Berger & Fromm, these will be charged to the Client. The Client is obliged to pay these costs within the aforementioned period, unless Berger & Fromm indicates otherwise.
In the event of liquidation, (application for) suspension of payments, or bankruptcy, seizure - if and to the extent that the seizure has not been lifted within three months - at the expense of the Client, debt restructuring or any other circumstance as a result of which the Client can no longer freely dispose of its assets, Berger & Fromm is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any damages or compensation. In that case, Berger & Fromm's claims on the Client are immediately due and payable.
If the Client cancels an order in whole or in part, the work that was carried out and the items ordered or prepared for that purpose, plus any associated transport and delivery costs and the working hours reserved for the execution of the agreement, will be charged to the Client in full.
Force Majeure
Berger & Fromm is not obliged to fulfil any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not attributable to fault and for which it is not responsible under the law, a legal act or generally accepted views.
In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in applicable laws, regulations and case law, all external causes, foreseen or unforeseen, over which Berger & Fromm has no influence, but which prevent Berger & Fromm from fulfilling its obligations. This includes strikes in the company of Berger & Fromm or third parties. Berger & Fromm also has the right to invoke force majeure if the circumstance that (further) Machine Translated by Google prevents compliance with the agreement, occurs after Berger & Fromm should have fulfilled its obligation.
Berger & Fromm may suspend performance during the period in which the force majeure continues. suspend obligations under the agreement. If this period lasts longer than two months, either party shall be entitled to terminate the agreement without any obligation to pay damages to the other party.
To the extent that Berger & Fromm is in breach of contract at the time of the occurrence of force majeure, If the obligations under the agreement have already been partially fulfilled or will be able to be fulfilled, and the part that has been fulfilled or is yet to be fulfilled has an independent value, Berger & Fromm is entitled to invoice the part that has already been fulfilled or is yet to be fulfilled separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Payment and collection costs
Payment must always be made within 14 days after the invoice date, in a manner to be specified by Berger & Fromm in the currency in which the invoice was issued, unless otherwise indicated in writing by Berger & Fromm. Berger & Fromm is entitled to invoice periodically.
If the Client fails to pay an invoice on time, then the Client is in default by operation of law. The Client shall then owe interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest shall be owed. The interest on the amount due shall be calculated from the moment the Client is in default until the moment of payment of the full amount due.
Berger & Fromm has the right to apply the payments made by the Client first to reduce the costs, then to reduce the accrued interest and finally to reduce the principal and the current interest. Berger & Fromm may, without being in default, refuse an offer of payment if the Client indicates a different order for the allocation of the payment. Berger & Fromm may refuse full repayment of the principal if the accrued and current interest and collection costs are not also paid.
The Client is never entitled to offset the amount owed by him to Berger & Fromm. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to appeal to section 6.5.3 (articles 231 to and including 247 book 6 BW) is also not entitled to suspend the payment of an invoice for any other reason.
If the Client is in default in the (timely) fulfillment of his obligations, then all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The default of the Client who is a natural person, who does not act in the exercise of a profession or business (private client), occurs after he has been reminded to pay within fourteen days after the day of the reminder and Machine Translated by Google payment is not made. The reminder also indicates the consequences of the failure to pay. The extrajudicial costs are calculated on the basis of what is customary in Dutch debt collection practice. However, if Berger & Fromm has incurred higher collection costs that were reasonably necessary and the Client is not a natural person who does not act in the exercise of a profession or business (business client), the actual costs incurred will be eligible for reimbursement. Any legal and enforcement costs incurred will also be recovered from the Client. The Client is also liable to pay interest on the collection costs owed.
Retention of title
The goods delivered by Berger & Fromm under the agreement remain property of Berger & Fromm until the Client has fully and properly fulfilled all obligations arising from the agreement(s) concluded with Berger & Fromm.
The goods supplied by Berger & Fromm, which, pursuant to paragraph 1, fall under the The goods subject to the retention of title may not be resold and may never be used as a means of payment. The Client is not authorised to pledge or otherwise encumber the goods subject to the retention of title.
The Client must always do everything that may reasonably be expected of him to safeguard the ownership rights of Berger & Fromm. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereto, the Client is obliged to inform Berger & Fromm thereof immediately. Furthermore, the Client undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection to Berger & Fromm upon first request. In the event of a possible payment of the insurance, Berger & Fromm is entitled to these funds. To the extent necessary, the Client undertakes in advance to cooperate with Berger & Fromm in everything that may (appear to) be necessary or desirable in that context.
In the event that Berger & Fromm wishes to exercise its property rights as referred to in this article, the Client hereby grants unconditional and irrevocable permission in advance to Berger & Fromm and third parties designated by Berger & Fromm to enter all places where Berger & Fromm's property is located and to take it back.
Guarantees, inspection and complaints, limitation period
The items to be delivered by Berger & Fromm meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee mentioned in this article applies to items that are intended for use within the Netherlands. In case of use outside the Netherlands, the Client must Machine Translated by Google to verify themselves whether the use thereof is suitable for the use there and meet the conditions that are set for it. In that case, Berger & Fromm may set other warranty and other conditions with regard to the goods to be delivered or work to be performed.
The warranty referred to in paragraph 1 of this article applies for a period of time after delivery. If the warranty provided by Berger & Fromm concerns an item that was produced by a third party, the warranty is limited to the warranty provided by the producer of the item, unless stated otherwise.
Any form of warranty shall lapse if a defect has arisen as consequence of or arising from improper or inappropriate use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Client and/or by third parties when, without the written permission of Berger & Fromm, the Client or third parties have made or attempted to make changes to the item, other items have been attached to it that should not be attached to it or if these have been processed or edited in a manner other than that prescribed. The Client is also not entitled to claim under the guarantee if the defect has arisen due to or is the result of circumstances over which Berger & Fromm has no influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) etc.
The Client is obliged to examine the delivered goods, immediately at the time that the goods are made available to him or the relevant work has been carried out. In doing so, the Client must investigate whether the quality and/or quantity of the delivered goods corresponds with what was agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to Berger & Fromm in writing within seven days of delivery. Any invisible defects must be reported to Berger & Fromm in writing immediately, but in any case no later than fourteen days after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that Berger & Fromm is able to respond adequately. The Client must give Berger & Fromm the opportunity to investigate a complaint.
If the Client complains in a timely manner, this does not suspend his payment obligation. In that case, the Client remains obliged to accept and pay for the other items ordered and for what he has instructed Berger & Fromm to do.
If a defect is not reported in a timely or proper manner, the Client will no longer be entitled to repair, replacement or compensation.
If it is established that an item is defective and this has been reported in a timely manner, If a complaint has been made, Berger & Fromm will return the defective item within a reasonable period of time after receipt of the return or, if return is not reasonable, Machine Translated by Google is not possible, written notice of the defect by the Client, at the discretion of Berger & Fromm, replace or arrange for repair thereof or pay compensation for replacement to the Client. In the event of replacement, the Client is obliged to return the replaced item to Berger & Fromm and to transfer ownership thereof to Berger & Fromm, unless Berger & Fromm indicates otherwise.
If it is established that a complaint is unfounded, the costs will be borne Any costs incurred as a result, including research costs incurred by Berger & Fromm, shall be borne in full by the Client.
After the warranty period has expired, all costs for repair or replacement will be will be charged to the Client.
Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Berger & Fromm and third parties involved by Berger & Fromm in the performance of an agreement is one year.
Liability and indemnity
If Berger & Fromm should be liable, then this liability is limited to what is stated in this provision.
Berger & Fromm is not liable for damage of any nature whatsoever arising when Berger & Fromm has based its actions on incorrect and/or incomplete information provided by or on behalf of the Client.
If Berger & Fromm is liable for any damage, the liability of Berger & Fromm is 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.
Berger & Fromm's liability is in any case limited to the amount of the payment from his insurer, if applicable.
Berger & Fromm is only liable for direct damage. Direct damage is exclusively understood to mean the reasonable costs 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 have Berger & Fromm's defective performance comply with the agreement, insofar as these can be attributed to Berger & Fromm and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions. Berger & Fromm is never liable for indirect damage, including consequential damage, lost profits, missed savings and damage due to business stagnation.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Berger & Fromm or its managerial subordinates.
The Client indemnifies Berger & Fromm against any claims from third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to other than Berger & Fromm. If Berger & Fromm is approached by third parties on this basis, the Client is obliged to assist Berger & Fromm both out of court and in court and to immediately do everything that may be expected of him in that case. If the Client fails to take adequate measures, Berger & Fromm is entitled, without notice of default, to take such measures itself. All costs and damage incurred by Berger & Fromm and third parties as a result thereof shall be entirely for the account and risk of the Client.
Intellectual property
All intellectual property rights in and to products supplied by Berger & Fromm goods belong exclusively to Berger & Fromm. Subject to payment by the Client of all amounts owed by the Client, Berger & Fromm may, at the request of the Client, transfer any or all rights, claims and interests, including intellectual property rights, in and to the delivered goods to the Client, its successors and assigns.
In the event that Berger & Fromm does not accept any work previously completed by or on behalf of Berger & Fromm is created, integrated into a matter delivered to Client, Berger & Fromm hereby grants to Company and its Affiliates a worldwide, royalty-free license to use the incorporated items, including, but not limited to, all relevant intellectual property rights.
Berger & Fromm reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual laws and regulations. Berger & Fromm has the right to use the knowledge acquired by it through the performance of an agreement for other purposes, provided that no strictly confidential information of the Client is brought to the attention of third parties.
Applicable law and dispute resolution
All legal relationships in which Berger & Fromm 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 expressly excluded.
The court in the place of establishment of Berger & Fromm has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise.
Parties shall only appeal to the court after they have made every effort to settle a dispute by mutual agreement.