TERM AND CONDITIONS
Article 1. General
1. These terms and conditions apply to every offer, quotation and agreement between JaroeDesign, hereinafter referred to as: “User”, and a Counterparty to which the User has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing. .
2. These terms and conditions also apply to agreements with User, for the implementation of which User must involve third parties.
3. These general terms and conditions are also written for the employees of the User and his management.
4. The applicability of any purchase or other conditions of the Other Party is explicitly rejected.
5. If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or should be destroyed, the other provisions of these general terms and conditions will remain fully applicable. The User and the Other Party will then enter into consultation in order to agree on new provisions to replace the invalid or voided provisions, whereby the purpose and scope of the original provisions are observed as much as possible.
6. If there is any uncertainty regarding the interpretation of one or more provisions of these general terms and conditions, the explanation must take place “in the spirit” of these provisions.
7. If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
8. If the User does not always require strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that the User would lose the right to demand strict compliance with the provisions of these conditions in other cases..
Article 2 Quotations and offers
1 All quotations and offers from User are without obligation, unless a term for acceptance has been set in the quotation. A quotation or offer lapses if the product to which the quotation or offer relates is no longer available in the meantime.
2 User cannot be held to its quotations or offers if the Other Party can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
3 The prices stated in a quotation or offer include VAT and other government levies as well as any costs to be incurred within the framework of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.
4 If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, the User is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
5 A composite quotation does not oblige User to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3 Duration of the contract; delivery terms, implementation and modification agreement; price increase
1. The agreement between the User and the Other Party is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.
2. If a term has been agreed or stated for the completion of certain activities or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Other Party must therefore give the User written notice of default. User must be offered a reasonable term to still implement the agreement.
3. User has the right to have certain activities performed by third parties.
4. User is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
5. If the agreement is executed in phases, User can suspend the execution of those parts that belong to a following phase until the Other Party has approved the results of the preceding phase in writing.
6. If User requires data from the Other Party for the implementation of the agreement, the implementation period will not commence until after the Other Party has made these available to User correctly and completely.
7. If during the execution of the agreement it appears that it is necessary for a proper execution thereof to change or supplement it, then the parties will proceed to adapt the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the Other Party, of the competent authorities, etc., is changed and the agreement is amended in terms of quality and / or quantity as a result, this may have consequences. for what was originally agreed. As a result, the originally agreed amount can be increased or decreased. The User will provide a quotation of this in advance as much as possible. The originally stated term of execution may be changed due to an amendment to the agreement. The Other Party accepts the possibility of changing the agreement, including the change in price and term of execution.
8. If the agreement is amended, including an addition, the User is entitled to implement it only after approval has been given by the person authorized within the User and the Other Party has agreed to the price and other conditions stated for the implementation. , including the time to be determined at that time when it will be implemented. Not or not immediately executing the amended agreement also does not constitute default on the part of User and is no ground for the Other Party to terminate the agreement.
9. Without being in default, User can refuse a request to amend the agreement if this could have consequences in terms of quality and / or quantity, for example for the work to be performed or goods to be delivered in that context.
10. If the Other Party should be in default in the proper fulfillment of what it is obliged to do towards the User, the Other Party is liable for all damage (including costs) on the part of the User that arises directly or indirectly.
11. If the User agrees on a certain price when concluding the agreement, the User is nevertheless entitled to increase the price under the following circumstances, even if the price was not originally stated under reservation.
– If the price increase is the result of an amendment to the agreement;
– if the price increase arises from a power accruing to the User or an obligation resting on the User by law;
– In other cases, on the understanding that the Counterparty who does not act in the exercise of a profession or business is entitled to dissolve the agreement by means of a written statement if the price increase exceeds 10% and takes place within three months after the conclusion. of the agreement, unless User is then still willing to execute the agreement on the basis of what was originally agreed, or if it is stipulated that the delivery will take place longer than three months after the purchase.
Article 4 Suspension, dissolution and early termination of the agreement
1. User is authorized to suspend fulfillment of the obligations or to dissolve the agreement immediately and with immediate effect, if:
– the Other Party does not, not fully or not timely fulfill its obligations under the agreement;
– after the conclusion of the agreement, the User becomes aware of circumstances that give good reason to fear that the Other Party will not fulfill its obligations;
– the Other Party was requested to provide security for the fulfillment of its obligations under the agreement when the agreement was concluded and this security is not provided or is insufficient;
– If, due to the delay on the part of the Other Party, the User can no longer be expected to fulfill the agreement under the originally agreed conditions, the User is entitled to terminate the agreement.
– if circumstances arise of such a nature that fulfillment of the agreement is impossible or unaltered maintenance of the agreement cannot reasonably be expected of the User.
2. If the dissolution is attributable to the Other Party, the User is entitled to compensation for damage, including the costs, caused directly and indirectly.
3. If the agreement is dissolved, the claims of the User on the Other Party are immediately due and payable. If the User suspends the fulfillment of the obligations, he will retain his rights under the law and agreement.
4. If User proceeds to suspension or dissolution on the grounds as referred to in this article, he is in no way obliged to compensate damage and costs arising or compensation in any way whatsoever as a result, while the Other Party, on account of breach of contract, however, compensation or compensation is required.
5. If the agreement is terminated prematurely by the User, the User will, in consultation with the Other Party, arrange for the transfer of work to be performed to third parties. This unless the cancellation is attributable to the Other Party. Unless the premature termination is attributable to the User, the costs for transfer will be charged to the Other Party. The User will inform the Other Party in advance as much as possible of the extent of these costs. The Other Party is obliged to pay these costs within the term specified by the User, unless the User indicates otherwise.
6. In the event of liquidation, of (application for) suspension of payments or bankruptcy, of attachment – if and insofar as the attachment is not lifted within three months – at the expense of the Other Party, of debt restructuring or any other circumstance that prevents the Other Party from can freely dispose of its assets for longer, the User 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 compensation or compensation. The claims of the User on the Other Party are in that case immediately due and payable.
7. If the Other Party cancels an order placed in whole or in part, then the items ordered or prepared for this, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, will be fully charged to the Other Party. are being brought.
Article 5 Force majeure
1. The User is not obliged to fulfill any obligation towards the Other Party if he is prevented from doing so as a result of a circumstance that is not attributable to fault, and is not for his account under the law, a legal act or generally accepted views. coming.
2. In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which the User cannot influence, but as a result of which the User is unable to fulfill his obligations. to come. User also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after User should have fulfilled his obligation.
3. During the period that the force majeure continues, the User can suspend the obligations under the agreement. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party.
4. If, at the time of the commencement of force majeure, the User has already partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part that has been fulfilled or to be fulfilled respectively has independent value, the User is entitled to fulfill or fulfill it part to be invoiced separately. The Other Party is obliged to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
1. Payment must always be made immediately upon receipt of the delivered goods and 50% of the agreed total amount. The remaining amount must always be made within 14 days after the invoice date, in a manner to be indicated by the User in the currency in which the invoice is made, unless stated otherwise by the User in writing. User is entitled to invoice periodically.
2. If the Other Party fails to pay an invoice in time, the Other Party is in default by operation of law. The Other Party will then owe interest. In the case of a consumer purchase, the interest is equal to the statutory interest. In other cases, the Other Party owes interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is due. The interest on the due amount will be calculated from the moment that the Other Party is in default until the moment of payment of the full amount due.
3. The User has the right to have the payments made by the Counterparty extend in the first place to reduce the costs, then to reduce the interest that has become due and finally to reduce the principal sum and the current interest.
4. User can, without being in default as a result, refuse an offer for payment if the Other Party indicates a different order for the allocation of the payment. User can refuse full payment of the principal sum, if the open and accrued interest and collection costs are not also paid.
5. Objections to the amount of an invoice do not suspend the payment obligation.
6. If the Other Party is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining settlement out of court will be borne by the Other Party. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice at that time, currently the calculation method according to Rapport Voorwerk II. However, if the User has incurred higher costs for collection that were reasonably necessary, the costs actually incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party also owes interest on the collection costs owed.
Article 7 Retention of title
1. All goods delivered by the User in the context of the agreement remain the property of the User until the Other Party has properly fulfilled all obligations arising from the agreement (s) concluded with the User.
2. Goods delivered by User that fall under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Other Party is not authorized to pledge or encumber in any other way the goods subject to retention of title.
3. The Other Party must always do everything that can reasonably be expected of it to safeguard the property rights of User.
4. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Other Party is obliged to immediately inform the User thereof.
5. The Other Party undertakes to insure the goods delivered subject to 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 to User for inspection on first request. In case of a possible payment of the insurance, the User is entitled to these tokens. Insofar as necessary, the Counterparty undertakes to the User in advance to cooperate with everything that is or appears to be necessary or desirable in that context.
6. In the event that the User wishes to exercise his property rights as indicated in this article, the Other Party gives unconditional and irrevocable permission in advance to the User and third parties to be designated by the User to enter all those places where the User’s properties are located and those items. to take back.
Article 8 Guarantees, research and complaints
1. The goods to be delivered by the User meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee referred to in this article applies to items intended for use within the Netherlands. When used outside the Netherlands, the Counterparty must verify itself whether the use thereof is suitable for use there and whether it meets the conditions that are imposed on it. In that case, the User can set other guarantee and other conditions with regard to the goods to be delivered or work to be performed.
2. The guarantee referred to in paragraph 1 of this article applies for a period of 48 hours after delivery. If the Other Party has not made a complaint after 48 hours, the Other Party will no longer be entitled to repair, replacement or compensation. If the guarantee provided by the User concerns an item that was produced by a third party, the guarantee is limited to that provided by the producer of the item, unless stated otherwise. After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Other Party.
3. Any form of guarantee will lapse if a defect has arisen as a result of or ensues from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Other Party and / or by third parties if, without written permission from The User, the Counterparty or third parties have made or attempted to make changes to the item, other items have been attached to it that do not need to be attached to it or if they have been processed or processed in a manner other than the prescribed manner. The Other Party is also not entitled to a warranty if the defect has arisen due to or is the result of circumstances beyond the User’s control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) et cetera.
4. The Other Party is obliged to inspect the delivered goods or have them inspected immediately at the moment that the goods are made available to him or the relevant activities have been carried out. In addition, the Counterparty should investigate whether the quality and / or quantity of the delivered goods correspond with what has been agreed and meet the requirements that the parties have agreed in this respect. Any defects must be reported to User in writing within two months after discovery. The report must contain a description of the defect that is as detailed as possible, so that the User is able to respond adequately. The Other Party must give User the opportunity to investigate a complaint or have it investigated.
5. If the Other Party makes a timely complaint, this does not suspend its payment obligation. In that case, the Other Party also remains obliged to purchase and pay for the otherwise ordered goods, unless they have no independent value.
6. If a defect is reported later, the Other Party is no longer entitled to repair, replacement or compensation, unless a longer period ensues from the nature of the item or the other circumstances of the case.
7. If it is established that an item is defective and a timely complaint has been made in this respect, the User will notify the defective item within a reasonable period of time after receipt thereof or, if return is not reasonably possible, in writing with regard to the defect by the Other Party, at the option of User, replace it or arrange for its repair or pay a replacement fee for it to the Other Party. In the event of replacement, the Other Party is obliged to return the replaced good to User and to transfer ownership thereof to User, unless User indicates otherwise.
8. If it is established that a complaint is unfounded, then the costs arising as a result, including the research costs, incurred by the User as a result, will be fully borne by the Other Party.
Article 9 Liability
1. If User should be liable, this liability is limited to what is regulated in this provision.
2. User is not liable for damage, of whatever nature, caused by User based on incorrect and / or incomplete information provided by or on behalf of the Other Party.
3. User is only liable for direct damage.
4. 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 the User’s defective performance comply with the agreement, insofar as these can be attributed to the User;
– reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.
5. User is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business or other stagnation. In the case of a consumer purchase, this limitation does not go further than that which is permitted under article 7:24 paragraph 2 of the Dutch Civil Code.
6. If User should be liable for any damage, then User’s liability is limited to a maximum of three times the invoice value of the order, or at least to that part of the order to which the liability relates.
7. User’s liability is in any case always limited to the amount paid out by its insurer, as appropriate.
8. 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 User or his managerial subordinates.
Article 10 Limitation period
1. Contrary to the statutory limitation periods, the limitation period for all claims and defenses against User and third parties involved by User in the performance of an agreement is one year.
2. The provisions of paragraph 1 do not apply to legal claims and defenses based on facts that would justify the assertion that the item delivered does not comply with the agreement. Such claims and defenses will lapse two years after the Other Party has notified User of such non-conformity.
Article 11 Transfer of risk
1. The risk of loss, damage or depreciation transfers to the Other Party at the moment when goods are brought under the control of the Other Party.
Article 12 Indemnity
1. The Other Party indemnifies the User 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 the User.
2. If User should be addressed by third parties on that basis, the Other Party is obliged to assist User both in and out of court and to immediately do everything that may be expected of him in that case. Should the Other Party fail to take adequate measures, then User is entitled to do so itself without notice of default. All costs and damage on the part of User and third parties that arise as a result, are fully for the account and risk of the Other Party.
Article 13 Applicable law and disputes
1. All legal relationships to which User is a party are exclusively governed by Dutch law, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 14 Location and change of conditions
1. These terms and conditions have been filed with the Chamber of Commerce in Amersfoort.
2. The most recently filed version or the version that applied at the time of the creation of the legal relationship with User is always applicable.
3. The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.
Explanation of the model text “General conditions for delivery to consumers”
Although the greatest care and attention has been given to the content and composition of the model general terms and conditions, the Chamber of Commerce accepts no liability whatsoever arising from the consultation and use thereof.
These model terms and conditions and the explanatory notes thereto are of an informative nature only and may serve as a guideline for drawing up general terms and conditions in a specific case. In particular, the articles dealing with warranty and liability must be adapted to the company that uses the conditions.
The following is a brief explanation of some provisions as included in the model general terms and conditions. This explanation does not imply completeness.
Moreover, the explanation does not imply that the other provisions apply to your company, that they do not need to be adapted to your company and its concrete activities.
It is therefore always important to carefully assess all provisions included in the model for their correctness, completeness, desirability and necessity for your company.
Because it often happens that, for example, a service provider also supplies goods to its clients, the model general terms and conditions for services also include provisions that relate to the delivery of goods. If you do not deliver business but your activities are purely aimed at providing services, then you may consider not including these provisions in your general terms and conditions.
It often happens that a company does not limit itself to, for example, only delivery to consumers, but that it also supplies, for example, to non-consumers. Because the law offers consumers more extensive protection than non-consumers, the content of the model general terms and conditions for consumers also deviates from the model general terms and conditions for delivery to non-consumers.
For example, if you deliver goods to both consumers and non-consumers, it is therefore advisable to pay extra attention to the difference when drawing up your general terms and conditions. It can of course also happen that your activities consist of both services and the delivery of goods. In that case too, it is advisable to take these different activities into account when drawing up your general terms and conditions.
In this explanation reference is made to legislation. The provisions referred to can be consulted at http://www.overheid.nl
For consumer transactions, the statutory regulations of the so-called consumer purchase (Book 7 of the Civil Code) and the statutory regulations on general terms and conditions, in which the “black” and “gray” lists are particularly important. The “black list” contains so-called invalid clauses. The “gray list” contains so-called voidable clauses.
Article 1: General
………: Here you must enter the name of your company.
Article 5 paragraph 3: Force majeure
If the force majeure situation lasts longer than 2 months.
This term is only an example and can be longer or shorter depending on the type and content of the agreement. If you change this term, it is of course important that you include a realistic term that is in line with the nature of your company and its activities.
Article 6 paragraphs 1 and 2: Payment and collection
Payment term of 14 days.
This term can be longer or shorter depending on the sector. However, such a period may not be so short that it is not or virtually impossible for your contracting party to pay the amount due within the period specified by you.
The interest on absenteeism of 1% per month can also be set higher or lower. However, the interest that you want to use may not be excessively high.
Article 5: Force majeure
The circumstances referred to in Article 5 are not the only circumstances that justify the conclusion that there is force majeure. There may therefore also be other circumstances that may justify invoking force majeure. An example of this is work strikes in your company or in the company of third parties.
Although strikes in your company or in the company of third parties that you use in the performance of an agreement are in principle at the expense and risk of the entrepreneur himself, under certain circumstances there is the possibility that an entrepreneur would also act in that case. can rely on force majeure. In particular, this may be the case if, according to objective standards, you have not been able to take measures to prevent the consequences of strikes in the specific case.
User reserves the right to invoke force majeure in the event of strikes in the company of User or third parties.
Article 8 paragraphs 2 and 4: Warranty period and notification period
………: You must enter the warranty period here.
The warranty period to be included in article 8 paragraph 2 depends on what the buyer can reasonably expect from the item to be delivered.
What the buyer can expect from this depends, among other things, on the nature of the case.
For example, the buyer may expect different properties from a new good or branded article than he may expect from a used good or non-branded goods.
It is also relevant what the seller has stated about the properties of the case.
In this context, attention should be drawn to the presumption that a matter is affected by a defect. This is because Article 7:18 of the Dutch Civil Code states that in the case of a consumer purchase it is suspected that the good has not complied with the agreement on delivery, if the deviation from the agreed is revealed within a period of six months after delivery, unless the nature of the matter or of the deviation opposes this.
The reporting period of two months included in Article 8 paragraph 4 is a legal period, in the sense that a notification within two months is timely (Article 7:23 paragraph 1 BW). This period may be shorter, but then falls under the scope of Article 6: 237 under h BW (The gray list).
The complaint period within which the consumer must notify the seller of an established defect commences from the moment the defect is discovered. If the defect occurs within a period of six months after the date of delivery, then the defect is presumed to have been present at the time of delivery of the good, unless:
– evidence to the contrary is proven;
– this assumption is inconsistent with the nature of the goods or the lack of conformity.
Except in the case of these two exceptions, the buyer is in that case entitled to have the item brought into conformity with the agreement free of charge. The consumer has the choice between repair or replacement of the item.
If repair or replacement is not possible, the consumer has the option to request an appropriate reduction of the purchase price or to dissolve the agreement. However, the consumer cannot claim dissolution if the lack of conformity is of minor importance.
Article 9 paragraph 3: Liability
Limitation of liability to three times the invoice value.
The amount of liability can be determined variably. Several factors can be important here.
For example, a far-reaching restriction will be considered less permissible if the risk is easily insurable. On the other hand, an exoneration will be more permissible if the ratio between the sales price of the products to be delivered or the price paid for the service provided by the user is small, while the damage that may result from it is so extensive that it is disproportionate. states that it is reasonable to limit liability.
It is therefore always important that you make a proper assessment of all relevant circumstances. In doing so, you should bear in mind that a complete exclusion of liability will generally not be considered acceptable.
If you have taken out liability insurance or wish to enter into such an insurance contract, it is advisable to submit the content of your terms and conditions to your insurance company.
The limitation of liability to three times the invoice value as included in the model is based on the limitation thereof in Article 7: 509 of the Dutch Civil Code. However, it is always important that you take into account that circumstances may arise in which invoking such a restriction will be considered contrary to reasonableness and fairness.
Article 10: Limitation period
The period stated in Article paragraph 1 shortens the period set by law. A clause whereby the limitation period is shorter than one year is regarded as unreasonably onerous within the meaning of Article 6: 237 DCC.
The term referred to in article 10 paragraph 2 corresponds to the term as included in article 7:23 paragraph 2 of the Dutch Civil Code. This term is mandatory for consumer purchases. It is therefore not possible to deviate from such a term for consumer purchases.
Article 13: Intellectual property
This provision is entirely optional and depends on whether intellectual property rights are involved.
Article 14: Applicable law and disputes
There is a separate dispute settlement scheme in some sectors. If such a scheme exists within your industry, you may have to follow it. In that case, article 14 must be adapted accordingly. However, not every dispute settlement is binding on members within the industry. You then have a choice. You can inquire with your sector organization whether a dispute settlement exists in your sector and whether it is binding on you.