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Terms and conditions

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Table of contents

Article 1: Applicability

  1. These conditions apply to all offers made by the private limited company Van Geffen VMS B.V. established in Empel (the municipality of ’s-Hertogenbosch), Chamber of Commerce number 17213589 – in these conditions designated as Van Geffen VMS – to all agreements they conclude and to all agreements that may be the result thereof.
  2. The opposite party of Van Geffen VMS is in these conditions designated as the customer.
  3. If there is a conflict of the content of the agreement between the customer en Van Geffen VMS and these standard conditions, only the terms of the agreement apply.

Article 2: Offers

  1. All offers are made without engagement.
  2. All offers made by Van Geffen VMS, have a 3 months duration of validity. If this offer is not accepted within this period, the offer passes.
  3. If the customer supplies data, drawings etc. to the contractor, the contractor may assume them to be correct and may base his offer upon them.
  4. The prices are exclusive of turnover and packaging.

Article 3: Intellectual property rights

  1. Unless agreed otherwise, Van Geffen VMS retains the copyright and all industrial property rights in the offers made by him and in designs, illustrations, drawings, models, test models, software etc. supplied by him.
  2. The rights to the data referred to in paragraph 1 shall remain the property of Van Geffen VMS irrespective of whether costs are charged to the customer for their production. Such data may not be copied, used or shown to third parties without the express consent of Van Geffen VMS. If this provision is infringed, the customer shall owe Van Geffen VMS a penalty of EUR 25,000. This penalty may be claimed in addition to any compensation owed by law.
  3. The customer must return the data supplied to him as referred to in paragraph 1 at the first request of Van Geffen VMS within the period specified by Van Geffen VMS. In the event of an infringement of this provision the customer shall owe Van Geffen VMS a penalty of EUR 1,000 per day. This penalty may be claimed in addition to any compensation owed by law.

Article 4: Advice, designs and materials

  1. The customer cannot derive any rights from advice and information obtained from Van Geffen VMS if they do not relate directly to the order.
  2. The customer is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of the materials prescribed by him or on his behalf.
  3. The customer shall indemnify Van Geffen VMS against any claim by its third parties relating to the use of drawings, calculations, samples, models and so forth supplied by or on behalf of the customer.
  4. The customer may, at his own expense, examine (or arrange for the examination of) the materials which Van Geffen VMS wishes to use before they are processed. If Van Geffen VMS suffers damage as a result, this shall be borne by the customer.

Article 5: Delivery period

  1. The delivery period and/or implementation period quoted by Van Geffen VMS is approximate.
  2. In fixing the delivery period and/or implementation period Van Geffen VMS assumes that he can execute the order in the circumstances known to him at that time.
  3. The delivery period and/or implementation period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of Van Geffen VMS, the agreed payment or instalment has been received and the necessary conditions for execution of the order have been fulfilled.
    1. If circumstances occur other than those known to Van Geffen VMS when he fixed the delivery period, the contractor may extend the delivery period by the time necessary to execute the order in the circumstances. If the work cannot be fitted into the planning schedule of Van Geffen VMS, it shall be completed as soon as his planning schedule permits this.
    2. If there is extra work, the delivery period and/or implementation period shall be extended by the time that is necessary to supply (or arrange for the supply of) the materials and parts for this purpose and to carry out the additional work. If the extra work cannot be fitted into the planning schedule of Van Geffen VMS it shall be completed as soon as his planning schedule permits this.
    3. If there is a suspension of obligations by Van Geffen VMS, the delivery period and/or implementation period shall be extended for the duration of the suspension. If continuation of the work cannot be fitted into the planning schedule of Van Geffen VMS, the work shall be completed as soon as his planning schedule permits this.
  5. If the agreed delivery period and/or implementation period is exceeded, this shall not under any circumstances confer entitlement to compensation unless this has been agreed in writing.

Article 6: Transmission of risk

  1. Delivery takes place ex works, in accordance with Incoterms 2000, the risk in relation to the goods shall pass at the moment when the Van Geffen VMS makes them available to the customer.
  2. Irrespective of the provisions of the previous paragraph, the customer and Van Geffen VMS agree that Van Geffen VMS shall arrange for the carriage. The risk of storage, loading, carriage and unloading shall be borne by the customer in this case too. The customer may insure himself against these risks.
  3. After completion of the activities at the place of residence of Van Geffen VMS the customer needs to take care of carriage of the materials within 14 days after written communication.

Article 7: Impossibility of performance

  1. Van Geffen VMS shall be entitled to suspend performance of his obligations if he is temporarily prevented from performing them by circumstances that could not be foreseen at the time of the conclusion of the agreement and which are beyond his control.
  2. Circumstances which could not be foreseen by Van Geffen VMS and which are beyond his control are deemed to include failure of his suppliers and/or subcontractors of Van Geffen VMS to fulfil their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import or trade restrictions.
  3. Van Geffen VMS shall not be entitled to suspend performance if performance is permanently impossible or if a temporary impossibility has lasted for longer than six months. The agreement may then be terminated in respect of such part of the obligations as have not yet been performed. In that case the parties shall not be entitled to compensation for damage suffered or yet to be suffered as a result of the termination.

Article 8: Scope of the work

  1. The contractor shall ensure that all licences, exemptions and other decisions that are necessary in order to carry out the work are obtained in good time.
  2. The price of the work does not include:
    1. the costs of groundwork, pile-driving, cutting, breaking, foundation work, bricklaying, woodwork, plastering, painting, wallpapering, repairs or other construction work;
    2. the costs of gas, water or electricity connections and other infrastructure facilities;
    3. the costs of preventing or mitigating damage to goods present at or near the work;
    4. the costs of removing materials, building materials or refuse;
    5. travelling and accommodation expenses.

Article 9: Alterations to the work

  1. Alterations to the work shall result in any event in extra work or reduced work if:
    1. there is an alteration to the design or the specifications;
    2. the information provided by the customer does not correspond with the reality;
    3. the quantities diverge by more than 10% from the estimates;
    4. there is an oral agreement of change in the order at the place where the work is performed.
  2. Extra work shall be calculated on the basis of the value of the price determinants applicable at the time when the extra work is carried out. Reduced work shall be calculated on the basis of the value of the price determinants applicable at the time when the agreement was concluded.
  3. If the increase and decrease in the work results on balance in a decrease Van Geffen VMS may charge the customer in the final invoice 10% of the difference in the balances. This provision does not apply in the case of a reduction in the work that is a result of a request of Van Geffen VMS.

Article 10: Execution of the work

  1. The customer shall ensure that Van Geffen VMS can carry out his activities without interruption and at the agreed time and that in the execution of the work he has access to the requisite facilities, such as:
    1. gas, water and electricity;
    2. heating;
    3. a lockable and dry storage room;
    4. facilities prescribed under the Working Conditions Act and other health and safety regulations under that Act.
  2. The customer shall be liable for all damage as a result of the loss, theft or burning of or damage to tools, materials and other property of Van Geffen VMS located at the place where the work is performed or on another agreed place.
  3. Van Geffen VMS is certified according to the Dutch Safety Checklist Contractors (VCA-certified). Employees of Van Geffen VMS shall review, on an independent basis, the conditions in the field of work safety, health hazards and environmental pollution and/or the protection of the environment. If employees of Van Geffen VMS hereby conclude that one or more of these circumstances is contrary to applicable regulations, this is to be considered as not having access to the necessary facilities as mentioned under the first paragraph of this article.
  4. If the customer fails to discharge his obligations as referred to in the previous paragraphs and the work is delayed as a result, the work shall be executed as soon as the customer meets is obligations and the planning schedule of Van Geffen VMS permits this. The customer shall be liable for all loss or damage suffered by Van Geffen VMS as a result of the delay, including the vainly travel and working time.

Article 11: Completion of the work

  1. The work shall be deemed to have been completed when:
    1. the work at the place of residence of Van Geffen VMS has been put to the disposal of the customer as agreed in article 6.3 of these conditions;
    2. the advisory report is delivered to the customer;
    3. the machine either the hardware where the advise is given for has been used;
    4. the work has been used by the customer. If the customer uses only part of the work, such part shall be deemed to have been completed;
    5. Van Geffen VMS gives written notice to the customer that the work has been completed and the customer does not indicate in writing within 14 days of the notice whether or not the work has been approved;
    6. the customer does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the use of the work.
  2. If the customer does not approve the work, he shall be obliged to give written notice of this to Van Geffen VMS specifying the reasons.
  3. If the customer does not approve the work he shall give Van Geffen VMS the opportunity to complete the work anew. The provisions of this article shall then apply once again.
  4. Customer indemnifies Van Geffen VMS against all claims of third parties for damage to non completed parts of the work caused by the usage of already completed parts of the work.

Article 12: Liability

  1. The research and consultancy works carried out by Van Geffen VMS can never lead to an obligation for result on the part of Van Geffen VMS. Given the nature of the work, how they should be performed and the circumstances on which an outcome depends (which can never be fully estimated by van Geffen VMS), rests on Van Geffen VMS an engagement for its best efforts.
  2. Van Geffen VMS is liable for damage which the customer suffers and which is the direct and sole result of a failure attributable to Van Geffen VMS. However, only loss or damage for which Van Geffen VMS is insured or for which he should reasonably have been insured will be eligible for compensation.
  3. If it is in the making of the contract not possible for Van Geffen VMS to insure himself or insure himself against reasonable conditions as referred to in paragraph 1 or to renewal the insurance against reasonable conditions then the compensation is restricted to the amount that Van Geffen VMS has invoiced (excluding VAT) for the present this contract.
  4. The following are not eligible for compensation:
    1. consequential loss or damage, including for example loss or damage due to business standstills and loss of profit; The customer can insure himself if desired against the damage;
    2. damage to goods which are being worked on or to goods which are in the vicinity of the place where the work is being carried out; The customer can insure himself if desired against the damage;
    3. damage caused by the intent or deliberate recklessness of auxiliaries or subordinated employees of Van Geffen VMS.
  5. Van Geffen VMS is not liable for damage to materials supplied by or on behalf of the customer caused by an unsound operation. At the request of the customer Van Geffen VMS will carry out the operation again, with new material, supplied by the customer at his own expense.
  6. The customer indemnifies Van Geffen VMS against all claims of third parties on account of product liability due to a defect in a product which has been supplied by the customer to a third party and consisted wholly or partly in products and/or materials supplied by the contractor.

Article 13: Warranty

  1. The contractor warrants the proper execution of the agreed performance for a period of six months after delivery or completion.
  2. If the agreed performance consists in the carrying out of contracted work, the contractor warrants the soundness of the delivered construction and the materials used in the construction for the period referred to in paragraph 1, provided that he was free to choose such materials.
    If it transpires that the delivered construction or the materials used are unsound, the contractor shall repair or replace them. The parts which the contractor is to repair or replace must be sent to him free of charge. The dismantling and assembly of these parts and any travelling and accommodation expenses incurred shall be borne by the customer.
  3. If the agreed performance consists in the processing by the contractor of materials supplied by the customer, the contractor warrants the soundness of the processing for the period referred to in paragraph 1.
    If it transpires that processing has not been carried out in a sound manner, the contractor shall choose whether:
    1. to carry out the processing anew, in which case the customer must supply new material at his own expense;
    2. to repair the defect, in which case the customer must return the material free of charge to the contractor;
    3. to provide the customer with a credit note for a proportionate part of the invoiced amount.
  4. If the agreed performance consists in the delivery of an item of goods, the contractor shall warrant the soundness of the delivered item during the period referred to in paragraph 1.
    If it transpires that the delivery has not been sound, the item of goods must be returned free of charge to the contractor. Thereafter the contractor shall choose whether:
    1. to repair the item of goods;
    2. to replace the item of goods;
    3. to provide the customer with a credit note for a proportionate part of the invoiced amount.
  5. If the agreed performance consists in part or in whole of the installation and/or assembly of a delivered item of goods, the contractor warrants the soundness of the installation and/or assembly for the period referred to in paragraph 1.
    If it transpires that the installation and/or assembly has not been carried out in a sound manner, the contractor shall repair it. Any travelling and accommodation expenses shall be borne by the customer.
  6. The factory warranty shall apply to parts in respect of which this has been expressly agreed in writing by the customer and the contractor. If the customer has had the opportunity to take cognizance of the content of the factory warranty, this shall take the place of the warranty under this article.
  7. The customer must in all cases offer the contractor the opportunity to repair the defect or to carry out the processing anew.
  8. The customer may invoke the warranty only after he has complied with all his obligations to the contractor.
    1. No warranty is given for defects that are a result of:
      1. normal wear and tear;
      2. injudicious use;
      3. non-maintenance or defective maintenance;
      4. installation, assembly, modification or repair by the customer or by third parties.
    2. No warranty is given for delivered items or goods that were not new at the moment of delivery or on goods that are recommended or delivered by the customer.

Article 14: Claims

  1. The customer may no longer invoke an instance of non-performance by Van Geffen VMS if he does not lodge a written claim with Van Geffen VMS:
    1. in the case of work in the residential address Van Geffen VMS within 14 days after the client's risk cases have come under article 6.1;
    2. in the case of work in the customers residential address within 14 days after the completion of the operations at that address.

Article 15: Uncollected goods

  1. If goods have not been collected by the time the delivery period expires, they shall continue to be held available for the customer. Uncollected goods shall be stored at the expense and risk of the customer. The contractor may always make exercise the power referred to in article 6:90 Civil Code.

Article 16: Payment

  1. Payment shall be made at the place of residence of Van Geffen VMS or by remittance to an account designated by van Geffen VMS.
  2. Unless agreed otherwise, payment shall be made within 30 days after the date of the invoice.
  3. Regardless of the agreed terms of payment, the customer shall be obliged, at the request of Van Geffen VMS, to provide such security for the payment as the contractor deems sufficient for the payment. If the customer fails to do so within the specified period, he shall be deemed to be immediately in default. Van Geffen VMS shall in that case have the right to terminate the agreement and recover his loss or damage from the customer.
  4. The customer does not have the right to set off claims against the contractor, unless the contractor has been declared bankrupt.
  5. The full claim for payment shall be immediately due and exigible if:
    1. a payment period has been exceeded;
    2. the customer has been declared bankrupt or has applied for a suspension of payments;
    3. the property or accounts receivable of the customer are seized;
    4. the customer (being a legal entity) is wound up or liquidated;
    5. the customer (being a natural person) is made the subject of a guardianship order or dies.
  6. If payment has not been made within the agreed period for payment, the customer shall immediately owe interest to Van Geffen VMS. The interest shall be 12% per year or the statutory rate of trade interest as meant in article 6:119a Dutch Civil Code, whichever is the higher. For the purpose of calculating the interest, part of a month shall be treated as a full month.
  7. If payment has not been made within the agreed period for payment, the customer shall owe Van Geffen VMS all extrajudicial costs of recovery, subject to a minimum of EUR 75.
    The costs shall be calculated on the basis of the following table:
    on the first EUR 3,000: 15%
    on any additional amount up to EUR 6,000: 10%
    on any additional amount up to EUR 15,000: 8%
    on any additional amount up to EUR 60,000: 5%
    on any additional amount over EUR 60,000: 3%
    If the extrajudicial costs actually incurred are higher than those in the above-mentioned table, the costs actually incurred shall be owed.

Article 17: Termination

  1. If the customer wishes to terminate the agreement in circumstances where Van Geffen VMS is not in default and the contractor agrees to this, the agreement shall be terminated by mutual consent. Van Geffen VMS shall in that case be entitled to compensation of all pecuniary damage, such as any loss suffered, loss of profit and costs incurred.

Article 18: Applicable law and competent court

  1. The law of the Netherlands is applicable.
  2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is not applicable, nor is any other international regulation the exclusion of which is permissible.
  3. Only the Dutch civil court that has jurisdiction at the place of residence of Van Geffen VMS may take cognizance of disputes, unless this would be contrary to peremptory law. Van Geffen VMS may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.
  4. The parties may, after it has come to a dispute, agree a different form of dispute resolution such as arbitration or mediation.