section 1 General
1. These conditions apply to any offer, tender and agreement between Dutch Greenfields, affiliated company parts and trade names, after this called: DGF and a Client on which DGF declared these conditions applicable to, for so far not being deviated from these conditions explicitly and in writing by parties.
2. Present conditions are also applicable on agreements with DGF, where for its accomplishment third parties need to be brought in by DGF.
3. These general conditions are also written for the representatives of DGF and they can only deviate from these unless they have explicit authorization for this.
4. The applicability of possible purchase- or other conditions from the Client are explicitly rejected.
5. In case one or more stipulations in these general conditions are completely or partly void or might be nullified on any moment, then the rest of the in these general conditions determinated stays fully applicable. DGF and the Client will in that case deliberate in order to agree on new stipulations, for replacement of the void or nullified stipulations, at which the goal and intention of the original stipulations will be regarded as much as possible
6. In case of unclearity about the explanation of one or more stipulations of these general conditions, then the explanation has to take place to ’the strain’ of these conditions.
7. In case a situation occurs between parties which is not regulated in these general conditions, then this situation has to be judged to the strain of these general conditions.
8. In case DGF does not always demand strict adherence to these conditions, this doesn’t mean that conditions of it are not applicable, or that DGF would loose in any amount the right to demand in other cases the exact adherence of the stipulations of these conditions.
section 2 Tenders and offers
1. All tenders and offers of DGF are not binding, unless a period of acceptance is been stated in the tender. In case no acceptance period is not been stated, it is not possible to be entitled on any right in any way on basis of the tender or offer, in case the service or product to which the tender or offer refers to is not available anymore in the meantime.
2. DGF cannot be held to its tenders or offers in case the Client can reasonably understand that the tenders or offers, or a part part of it, contains an obvious error or slip of writing.
3. The prices mentioned in a tender or offer are without VAT and other governmental levies, possible costs to make in the frame of the agreement, travel- and lodging-, shipping- and administrationcosts included, unless mentioned differently.
4. In case the acceptance (based on underlying points or not) deviates from the offer, included in the tender or offer then DGF is not bound by it. The agreement will then not be established according to these deviating acceptance , unless DGF states differently.
5. A composed quotation does not obligate DGF to the performance of a part of the order for a corresponding part of the mentioned price. Offers and tenders don’t automatically apply to future orders.
section 3 Contract duration; execution times, risk change-over, execution and modification agreement; rise in prices
1. An agreement between DGF and the Client will be concluded for an indefinite period of time, unless differently arises from the nature of the agreement or in case parties agree differently explicitly and written.
2. When a time is agreed upon or set for the accomplishment of certain activities or for the delivery of certain goods, then this never is the fatal term. In case of excedence of a term the Client thus needs to give DGF a written default notice. DGF needs to be offered a reasonable period of time at it for still fulfillment of the agreement.
3. DGF will carry out the agreement to best insight and ability and according to the requirements of good craftsmanship. One thing and another based on the on that moment known state of science.
4. DGF has the right to let perform certain activities by third parties. The applicability of sections 7:404, 7:407 part 2 and 7:409 BW are explicitly excluded.
5. In case of performance of activities on location of the Client or a by the Client designated location, by DGF or third parties brought in by DGF under the order, the Client takes care of reasonable required facilities by those workers free of charge.
6. Delivery takes place off company of DGF. The Client is obliged to purchase the goods on the moment that these are made available for him. In case of refusal of purchase by the Client or in case of negligence at the supply of information or instructions necessary for the delivery, then DGF has the right to stock the goods with costs and risk for the Client. The risk of loss, damage or depreciation passes to the Client on the moment of availability of goods to the Client.
7. DGF is entitled to carry out the agreement in different phases and invoice the then fulfilled part seperately.
8. In case of execution of the agreement in different phases, DGF can postpone the fulfillment of those parts which belong to a next phase untill the Client has approved written the results of the from that preceding phase.
9. The Client takes care off a timely supply to DGF of all data, of which DGF indicates that these are necessary or of which the Client reasonably has to understand that these are necessary for the fulfillment of the agreement. In case of a non-well timed supply of data necessary for the fulfillment of the agreement to DGF, DGF has the right to suspend the fulfillment of the agreement and/or charge the Client the from the delay arised extra costs according to the then usual tariffs. The execution time doesn’t start sooner than after the disposal of the data by the Client to DGF. DGF is not liable for damage, of any kind, because DGF’s starting point was the by the Client supplied wrong and/or incomplete data.
10. In case it shows during the fulfillment of the agreement that it has to be changed or complemented, necessary for a decent fulfillment of it, then parties will proceed on time and in mutual consultation to adaptation of the agreement. In case the nature, size or content of the agreement is being changed, by the request or on indication of the Client or not , or by the competent authorities etcetera, and the agreement is being changed in quality and/or in quantity by this, then this may have consequences for what was originally agreed upon. Because of that the original agreed amount can also be increased or decreased. DGF will do a quotation of it previously as much as possible. By a change of the agreement the original given time of execution can furthermore be changed. The Client accepts the possiblity of change of the agreement, the change in price and time of execution included.
11. In case the agreement is being changed, a complement included, then DGF is entitled to fulfill it only when the within DGF competent person has agreed with it and the Client has agreed with the for the fulfillment given price and other conditions, the moment that then has to be set at which the fulfillment will take place included. The non or non-immediate fulfillment of the changed agreement does not lead to a breach of contract of DGF en is no reason for the Client to terminate or cancel the agreement.
12. Without coming in default, DGF can refuse an offer of modification of the agreement, in case this would have consequences in respect of quality and/or quantity, for example to under that to be performed activities or to be delivered goods.
13. In case the Client becomes into default in the sound compliance of what he is held to to DGF, then the Client is liable for all damage, arised to the side of DGF by it, directly or indirectly.
14. In case DGF agrees with the Client a fixed fee or price, then DGF is nevertheless always entitled to raise this fee or price, without the Client being entitled in that case to dissolve the agreement because of that reason, in case the raise of the price arises from a competence or obligation pursuant to legislation or rules or caused by an increase of the price of materials, wages etcetera or on other grounds, that were not reasonably possible to foresee at the conclusion of the agreement.
15. In case the mark-up amounts more than 10 %, other than by a result of a modification of the agreement and takes place within three months after conclusion of the agreement, then only the Client, who can to appeal to title 5 part 3 of Book 6 BW, is entitled to dissolve the agreement by a written declaration, unless DGF
– in that case yet is prepared to fulfill the agreement on the basis of what was originally agreed upon.
– if the mark-up arises from a competence or an obligation for DGF according to the law.
– when it is stipulated that the delivery will take place longer than three months after conclusion of the agreement.
– or, at delivery of a good, in case it is agreed upon that the delivery will take place longer than three months after the purchase.
section 4 Deferral, dissolution and interim cancellation
1. DGF is entitled to defer the observance of the obligations or to dissolve the agreement, when the Client does not, not fully or not on time observe the obligations from the agreement, after the conclusion of the agreement the circumstances come to knowledge give DGF good reason to fear that Client will not observe its obligations, when the Client was asked at the conclusion of the agreement to certify the fulfillment of its obligations from the agreement and this security does not occur or is insufficient or in case by delay on the side of the Client it is no longer reasonable to ask from DGF to observe the agreement against the originally agreed conditions.
2. Furthermore DGF is entitled to dissolve the agreement when circumstances occur, that are such that observance of the agreement is impossible or in case any other circumstances occur that are such that unmodified conservation of the agreement cannot reasonably be demanded from DGF.
3. In case the agreement is being dissolved DGF can claim its receivables to the Client immediately . In case DGF defers the observance of its obligations, it keeps his claims from the law and the agreement.
4. In case DGF proceeds to deferral or dissolution, it is not held in any way to compensation of damage and costs arised by it in any way.
5. In case the dissolution is accountable to the Client, DGF is entitled to compensation of the damage, the costs arised by it directly or indirectly, included.
6. In case the Client does not observe his obligations arising from the agreement and this non-observance justifies dissolution, then DGF is entitled to prompt and as from immediate start dissolution of the agreement without any obligation on its side of paying any damage or indemnification, while the Client, under breach of contract, is on the other hand surely obliged to damage or indemnification.
7. In case of interim cancelllation of the agreement by DGF, DGF will in consultation with the Client take care of transfer of still to fulfill activities to third parties. This unless the cancellation is accountable to the Client. In case the transfer of the activities brings extra costs for DGF, then they will be charged to the Client. The Client is held to pay these costs within the for this mentioned term, unless DGF indicates differently.
8. In case of liquidation, of (request of) letter of licence or bankruptcy, of seizure -if and so far as the seizure is not annulled within three months- chargeable to the Client, of sanitation of debts or any circumstance whereby the Client can no longer freely dispose of its capital, DGF can freely at once and from immediate start denounce the agreement or cancel the order or agreement, without any obligation on its side of payment of any damage or indemnification. The claims of DGF on the Client are in that case immediately claimable.
9. In case the Client cancels a placed order fully or partly, then the activities that were performed and the therefor ordered or prepared goods, enhanced with the possible supply- remove- and delivery costs of it and the for the fulfillment of the agreement reserved work time, will be integrally charged to the Client.
section 5 Force Majeure
1. DGF is not held to meet any obligation towards the Client if it is impeded to it as a result of a circumstance that is not imputed to its fault, and when it is not charged according to law, a judicial act or generally accepted views.
2. By force majeure is understood in these general conditions, alongside what is understood about it in legislation and jurisprudence, all causes coming from outside, foreseen or not-foreseen, at which DGF has no influence, though at which DGF is not capable to meet its obligations. Strikes of work in the company of DGF or of third parties included. DGF has also the right to refer to force majeure in case the circumstance that (futher) observance of the agreement hinders, sets in after DGF had to meet its obligation.
3. DGF is allowed to defer the obligations arising from the agreement during the period at which the force majeure lasts. In case this period lasts longer than two months, then both parties are entitled to dissolve the agreement, without obligation to compensation of damage to the other party.
4. In case DGF has already partly met its obligations arised from the agreement in the meantime during the set in of the force majeure or be able to meet these, and what was already met respectively the part that still has to be met gets independent value, DGF is entitled to invoice the already met respectively the part that still has to be met seperately. The Client is held to meet this invoice as if there is a seperate agreement.
section 6 Payment and collection costs
1. Payment always has to take place within 14 days of the invoice date, in a way pointed out by DGF in the currency in which has been invoiced, unless differently pointed out written by DGF. DGF is entitled to invoice periodically.
2. In case the Client stays in default in timely payment of the invoice, the the Client is in default by operation of law. The Client is then due to a interest rate of 1% a month, unless the legal interest rate is higher, in which case the legal interest rate is due. The interest rate on the payable amount will be calculated from the moment that the Client is in default untill the moment of payment of the fully due amount.
3. DGF has the right to […] the by the Client made payments in the first place in diminishing of the costs, then in diminishing of the fallen vacant interest rate and finally in diminishing of the main sum and the current interest rate. DGF can, without becoming in default, refuse an offer of payment, in case the Client indicates a different order for the attribution of the payment. DGF can refuse full redemption of the main sum, in case with that not also the fallen open and current interest rate and collection costs are payed.
4. The Client is never entitled to settlement of the by him owed to DGF. Objections againsts the hight of an invoice don’t defer the duty to pay. The Client that cannot appeal to part 6.5.3. (the sections 231 untill 247 book 6 BW) is neither entitled to defer the payment of an invoice because of an other reason.
5. In case the Client is in default in the (timely) meeting of its duties, then all reasonable costs for an extrajudicial acquistion of payment will be be charged on the Client. The extrajudicial costs are calculated on basis of what is usual in Dutch collection practice, at the moment the calculation method according to Report Voorwerk II. In case DGF has made higher costs for collection though that were reasonably necessary, the truly made costs are eligible for compensation. The possible made judicial and executioncosts will also be charged to the Client. The Client is also due to interest rate over the due collection costs.
Section 7. Retention of ownership
1. What is delivered under the agreement by DGF stays the property of DGF untill the Client has met all obligations arised from the agreement concluded with DGF soundly.
2. The things delivered by DGF, that falls under retention of ownership according to section 1, are never allowed to resale and is never allowed to use as a method of payment. The Client is not qualified to pawn the under the retention of ownership falling or burden on any other way.
3. The Client has always to do all that can reasonably expected from him to secure the ownership rights of DGF. In case third parties attach the under the retention of ownership delivered or establish rights on it or assert, then the Client is obliged to inform DGF of it immediately. Furthermore the Client commits itself to insure the under the retention of ownership delivered goods and keep them insured against fire, explosion and waterdamage and also against theft and give access of the policy of this insurance to DGF on first request. At a possible payment of the insurance DGF is entitled to these payments. For so much as needed the Client commits itself to DGF anticipatory to cooperate of all that might be (turned out to be) needed or desirable.
4. In case DGF wants to exercise its in this section indicated rights of ownership, the Client authorizes DGF and by DGF designated third parties anticipatory unconditionally and non-revocably to enter all those places at which the properties are located and to take them back.
section 8 Guarantees, inquiry and reclamation, term of limitation
1. The delivered goods by DGF meet the usual requirements and standards which can be reasonably demanded from it at the moment of delivery and wherefore they are meant at normal use in The Netherlands. The mentioned guarantee in this section applies to goods that are meant for the use within The Netherlands. At use outside of The Netherlands the Client has to verify himself if the use of it is appropriate for the use there and meets the conditions that are demanded at it. DGF can in that case state other guarantee- and other conditions in respect of to be delivered goods or to be carried out activities.
2. The guarantee mentioned in part 1 of this section applies to a period of 1 month after delivery, unless arises differently from the nature of the delivered or parties agreed upon differently. In case the guarantee povided by DGF concerns a good that was produced by a third party, then the guarantee is limited to that one, that is provided at it by the producer of the service or good, unless it is mentioned differently.
3. Every mode of guarantee expires in case a failure arised as a result of or arises from a injudicious or figurative use of it or use after the expiration date, incorrect storage or maintenance at it by the Client and/or third parties, when, without written permission from DGF, the Client or third parties have made change to a good, or tried to made them, other goods where attached to it that are not supposed to be attached to it or in case these where assimilated or adapted in an other way then prescribed. The Client is neither entitled to guarantee in case the failure arised by or is the result of circumstances at which DGF has no influence, wheater conditions (as for example though not exlusively, extreme rainfall or temperatures) etcetera.
4. The Client is held to (let) examine the delivered, immediately on the moment that the goods are disposed to him respectively the relevant activities are performed. The Client has to examine thereby if quality and/or quantity of the delivered corresponds with what is agreed upon and meets the requirements that parties have agreed upon it. Possible visible failures need to be reported to DGF written within seven days after delivery. Possible non-visible failures need to be reported at once, though in any case at the latest within fourteen days, after discovery, written to DGF. The report has to contain a description as detailed as possible of the failure, wherefore DGF is capable to react adequately. The Client has to give DGF the chance to (let) examine a complaint.
5. In case the Client claims on time, this does not defer its duty to pay. The Client remains in that case also held to take off and payment of the remaining ordered goods and where it has ordered DGF.
6. In case a failure is been reported later, then the Client is not entitled anymore to recovery, replacement or indemnification.
7. In case it is clear and fixed that a good is deficient en timely is claimed in this respect, then DGF will the deficient good within a reasonable term after return receipt of it, or if return is not reasonably possible, written notification to the purpose of the failure by the Client, to choice of DGF replace or take care of restoration of it, or pay replacing compensation for it to the Client. In case of replacement the Client is held to return the replaced good to DGF and provide the ownership over it to DGF, unless DGF states differently.
8. In case it is clear and fixed that a complaint is unjust, then the costs arised by it, the inquiry costs included, fallen at the side of DGF of it, are integrally charged to the Client.
9. After expiration of the guarantee period all costs for restoration or replacement, aministration, shipping- and call out costs included, will be charged to the Client.
10. Contrary to the legal terms of limitation, the term of limitation of all claims and defends against DGF and the by DGF at the fulfillment of the agreement involved third parties, amounts one year.
section 9 Liability
1. In case DGF might be liable, the this liability is limited to what is regulated in this stipulation.
2. DGF is not liable for damage, of any kind, arised because DGF’s starting point was by or on behalf of the Client provided incorrect and/or incomplete data.
3. In case DGF might be liable for any damage, then the liability of DGF is limited to a maximum of one time the monthly invoice value of the order, at any rate to that part of the order at which the liability applies.
4. The liability of DGF is in any case always limited to the amount of payment of its insurer when occasion arises.
5. DGF is exclusively liable for direct damage.
6. Under direct damage is only understood the reasonable costs for determination of the cause and size of the damage, as far as the determination applies to damage in the light of these conditions, the possible made reasonable costs to let accord the deficient performance of DGF to the agreement, for as far these costs can be chargde to DGF and reasonable costs, made for avoidance or limitation of the damage, as far as the Client shows that these costs have led to limitation of direct damgage as meant in these general conditions. DGF is never liable for indirect damage, also understood under it consequental damage, loss of profit, lost savings and damage by business stagnation.
section 10 Disclaimer
1. The Client secures DGF from any claims of third parties, that suffer damage in connection to the fulfillment of the agreement and of which the cause is accountable to others than to DGF. In case DGF for that reason might be adddressed by third parties, then the Client is held to assist DGF judicially or outside of it and do immediately all that can be required of him. In case the Client stays in default in taking adequate measures, then DGF is, without default notice, entitled to do this itself. All costs and damage on the side of DGF and third parties, arised by it, will be integrally charged to and will be for risk of the Client.
section 11 Intellectual property
1. DGF reserves the rights and competences that are due to him based on the Copyright Law and other intellectual law and legislation. DGF has the right to also use the knowledge that came to his side at the fulfillment of the agreement for other purposes, as far as no strict confidential information of the Client is brought to the attention of third parties by this.
section 12 Applicable law and disputes
1. On all legal relationships at which DGF is a party, only the Dutch law is applicable, also in case an engagement is implemented fully or partly abroad or in case the party involved at the legal relationship has its residence there. The applicability of the Vienna Sales Convention is excluded.
2. The judge in the place of residence of DGF is exclusively competent to take cognizance of disputes, unless law prescribes compulsory differently. Nevertheless DGF has the right to submit the dispute to an according to the law competent judge.
3. Parties will first appeal to a judge after they strained themselves tot the utmost to settle a dispute in mutual consultation.
Ssection 13 Place of finding and modifiations conditions
1. DGF is part of Bijland Management Limited and registered at the Chamber of Commerce in The Hague under KvK number 27357332.
2. These general conditions are consigned at the Chamber of Commerce in The Hague.
3. Applicable is always the last consigned version or the version as it was applicable at the time of the realization of the legal relationship with DGF.
4. The Dutch text of the general conditions is always decisive for the explanation of it.