GENERAL TERMS AND CONDITIONS NOSTALGIE BV V1.0
OF:
Nostalgie BV
Woude 19
De Woude
hereinafter to be referred to as: NostalgieBV
Article 1 Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
NostalgieBV: the user of the general terms and conditions.
Client: NostalgieBV's opposite party.
Agreement: the agreement concerning the provision of services.
Article 2 General
1. The present terms and conditions shall apply to each and every offer, tender and agreement between NostalgieBV and a client, to which NostalgieBV has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to all agreements with NostalgieBV, the execution of which calls for the services of third parties.
3. The buyer's general terms and conditions shall only apply if parties have explicitly agreed in writing that said general terms and conditions shall apply to the present agreement with the exclusion of the present general terms and conditions. In that event possibly still conflicting stipulations in NostalgieBV's and buyer's general terms and conditions shall only apply between parties, if and in so far that they are a part of NostalgieBV's general terms and.
4. If one or more stipulations in the present general terms and conditions should be null and void or declared null and void, then the other stipulations of the present general terms and conditions shall remain fully applicable. The case ensuing, NostalgieBV and client shall enter into negotiations to agree upon new stipulations replacing the null and void conditions, or, as the case may be, the conditions declared null and void, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.
Article 3 Offers and Tenders
1. All offers shall be free of obligation unless the offer contains an acceptance term.
2. The offers made by NostalgieBV shall be free of obligation; they shall be valid for a period of 30 days, unless indicated otherwise. NostalgieBV shall only be bound by the offers if the acceptance thereof is confirmed in writing by the opposite party within 30 days, unless indicated otherwise.
3. Terms of delivery given in NostalgieBV's offers shall only be tentative and exceeding these terms of delivery shall not entitle buyer to dissolution or damages, unless explicitly agreed upon otherwise.
4. The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of the other expenses to be possibly made within the scope of the agreement, including shipment and administration costs, unless NostalgieBV indicates otherwise.
5. If the acceptance deviates (on secondary items) from the offer given, NostalgieBV shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless NostalgieBV indicates otherwise.
6. A compound quotation shall not oblige NostalgieBV to execute part of the assignment against a corresponding part of the given quotation.
7.Offers and tenders shall not apply automatically to future assignments.
Article 4 Execution of the Agreement
1. NostalgieBV shall execute the agreement to the best of his knowledge and ability.
2. If and in so far required for the proper execution of the agreement, NostalgieBV shall have the right to have certain work done by third parties.
3. The client shall see to it that NostalgieBV shall be provided in due time with all data which NostalgieBV has said to be necessary or which the client must in all reasonableness understand to be necessary to the execution of the agreement. If NostalgieBV has not been provided in due time with the data necessary to the execution of the agreement, NostalgieBV shall have the right to suspend the execution of the agreement and / or to charge the client for the additional costs resulting from the delay at the generally accepted rates.
4. NostalgieBV shall not be liable for damage of whatever nature caused by the fact that NostalgieBV worked on the basis of incorrect and / or incomplete data provided by the client, unless NostalgieBV should have been aware of said incorrectness or incompleteness.
5. If parties have agreed that the agreement will be executed in stages, NostalgieBV can suspend the execution of the parts belonging to a following stage until the client has approved in writing the results of the stage prior to it.
6. If NostalgieBV or third parties engaged by NostalgieBV within the scope of the assignment do work at client's site or at a site designated by client, client shall provide the employees having to work there free of charge with all facilities desired in all reasonableness by said employees.
7. Client shall safeguard NostalgieBV against possible claims filed by third parties who may sustain damage attributable to client in connection with the execution of the agreement.
Article 5 Delivery
1. Delivery shall be made ex works/store/warehouse of NostalgieBV, unless explicitly agreed upon otherwise.
2. Client shall be held to take delivery of the goods the moment that NostalgieBV delivers them to him or has them delivered, or the moment at which the goods are put at buyer's disposal under the agreement.
3. If the client refuses to take delivery or fails to give the information or instructions necessary to the delivery, NostalgieBV shall be entitled to store the goods at client's risk and expense.
4. If the goods are serviced, NostalgieBV shall be entitled to charge possible service charges. Said service charges shall then be invoiced separately.
5. If, in the framework of the execution of the agreement, NostalgieBV requires data to be given by the client, the term of delivery shall commence after the client has provided NostalgieBV with said data
6. The client is not authorised to move the delivered goods inside the premises, unless explicitly agreed upon otherwise. The moving of the goods shall be considered as theft.
1. Client shall be held to examine the delivered goods (to have the delivered goods inspected) the moment of delivery (handing over), but in any case in as short a period of time as possible. In this respect, client must examine whether the quality and the quantity of the delivered goods comply with what was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.
2. The client must notify NostalgieBV in writing of complaints about the work done at the moment of delivery.
3. If in accordance with the previous paragraph, client shall still be held to take delivery and effect payment of the goods rented.
Article 7 Offers & tenders
The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise.
Article 8 Changes to the agreement
1. If it is shown during the execution of the agreement that the work to be done needs to be changed and / or supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultations.
2. If parties agree that the agreement needs to be changed and / or supplemented, this decision may influence the time of completion of the execution. NostalgieBV shall inform the buyer thereof as soon as possible.
3. Should the change and / or supplement to the agreement have any financial and / or qualitative consequences, NostalgieBV shall inform buyer thereof in advance.
4. If a fixed rate has been agreed upon then NostalgieBV shall indicate the degree to which the change or supplement to the agreement will result in an increase of said fixed rate.
5 Contrary to the conditions governing this matter, NostalgieBV shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to NostalgieBV.
Article 9 Payment
1. Payment must be made within 14 days from the date of invoice, in a way to be indicated by NostalgieBV and in the currency in which the statement of expenses was drawn up. Contestation of the amount of the statements of expenses shall not suspend the fulfilment of the payment obligation
2. If client fails to fulfil his payment obligation within the term of 14 days, then client shall be in default by operation of law. In that event, client shall owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the day the client is in default until the moment he has paid the amount in full.
3. NostalgieBV's claims against client shall become due on demand in the event that client's company is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
4. NostalgieBV shall be entitled to have the payments made by the client go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest. NostalgieBV shall have the right, without this leading NostalgieBV to be in default, to refuse an offer for payment, if the client designates a different sequence of attribution. NostalgieBV shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
5. NostalgieBV has the right to settle the invoice with the deposit made by the client.
1. All goods delivered by NostalgieBV, possibly also including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain NostalgieBV's property until client has fulfilled all of his obligations under all agreements concluded with NostalgieBV.
2. Client shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
3. If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, client shall be held to inform NostalgieBV thereof as soon as can reasonably expected.
4. The client shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
5. In the event that NostalgieBV wishes to exercise his ownership rights mentioned in the present article, client shall give NostalgieBV or third parties to be appointed by NostalgieBV, now for then, unconditional and irrevocable permission to access all sites and locations where NostalgieBV's property might be found and to take these goods back.
Article 11 Guarantee
1. NostalgieBV shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever.
2. The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use or when the buyer or third parties have introduced changes or tried to introduce changes to the good without NostalgieBV's consent in writing or if they have used it for purposes for which the good was not intended.
3. If the guarantee given by NostalgieBV concerns a good produced by a third party, the guarantee shall be limited to the guarantee given by the producer of the good.
1. If the client fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the client. If the client remains in default of payment within the set time period, he forfeits a immediately payable fine of 15%, exclusive VAT, on the amount due at that moment. This with a minimum of € 50.
2. If NostalgieBV demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
3. The reasonable judicial and execution costs possibly incurred shall equally be borne by client.
4. The client shall owe interest over the collection charges.
Article 13 Suspension and Dissolution
1. NostalgieBV shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:
- client does not fulfil or does not fully fulfil his obligations resulting from the agreement
- after the agreement has been concluded, NostalgieBV learns of circumstances giving good ground to fear that the client will not fulfil his obligations. If good ground exists to fear that the client will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
- client was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
2. NostalgieBV shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
3. If the agreement is dissolved, NostalgieBV's claims against the client shall be forthwith due and payable. If NostalgieBV suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
4. NostalgieBV shall always retain the right to claim damages.
5. Client has the right to dissolve the agreement against payment of a percentage of the agreed upon amount to NostalgieBV of:
- in case of annulment before 60 days of delivery 0% of the agreed upon amount
- in case of annulment between 60 and 30 days of delivery 10% of the agreed upon amount
- in case of annulment between 30 and 14 days of delivery 25 % of the agreed upon amount
- in case of annulment between 17 and 7 days of delivery 50% of the agreed upon amount
- in case of annulment between 7 and 4 days of delivery 75 % of the agreed upon amount
- in case of annulment within the last three days before delivery 100% of the agreed upon amount
Article 14 Liability
1. If the goods delivered by NostalgieBV are defective, NostalgieBV's liability vis à vis the client shall be limited to the arrangements made in the present terms and conditions under "Guarantee".
2. NostalgieBV shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
Article 15 Transfer of Risk
1. The risk of loss of, or damage to the goods being the subject of the agreement, shall be transferred to client the moment said goods are judicially and/or actually delivered to client and therefore fall into the power of client or of third parties to be appointed by client.
Article 16 Force Majeure
1. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
2. In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which NostalgieBV cannot have any influence but which prevents NostalgieBV from fulfilling his obligations. Industrial action at NostalgieBV's company shall also be understood to be a circumstance of force majeure.
3. NostalgieBV shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which NostalgieBV should have fulfilled his obligation.
4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
5. Insofar NostalgieBV has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, NostalgieBV shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. The client shall be held to pay this statement of expenses as if it were a separate agreement.
1. The client shall safeguard NostalgieBV against claims filed by third parties concerning intellectual property rights on material or data provided by the client, which shall be used for and during the execution of the agreement.
2. If the client provides NostalgieBV with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 18 Intellectual Property and Copyrights
1. Without prejudice to the other stipulations of the present general terms and conditions, NostalgieBV shall reserve the rights and authorities to which NostalgieBV is entitled under the Copyright Act.
2. The buyer shall not be allowed to introduce changes to the goods and material provided, unless the nature of the delivered goods and material dictates otherwise or if agreed upon otherwise in writing.
3. The designs, sketches, drawings, films, software and other material or (electronic) files, possibly produced by the NostalgieBV within the framework of the agreement, shall remain NostalgieBV's property, irrespective of the fact whether they have been handed over to the buyer or to third parties, unless agreed upon otherwise in writing.
4. All documents, such as reports, advice, agreements, designs, sketches, drawings, software, etc., provided by NostalgieBV, shall be destined to be used by client exclusively and must not be reproduced, made public or brought to the notice of third parties by client without prior consent from NostalgieBV, unless the nature of the documents provided dictates otherwise.
5. NostalgieBV shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
Article 19 Secrecy
1. Both parties shall be bound to secrecy of all confidential information they have received within the scope of their agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
2. If a statutory provision or a judicial decision compels NostalgieBV to convey confidential information to third parties designated by law or by the court and NostalgieBV cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, NostalgieBV shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 20 Disputes
1. The Court in NostalgieBV's place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. NostalgieBV shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
2. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 21 Applicable Law
1. Dutch law shall apply to each and every agreement between NostalgieBV and the client. The Vienna Sales Convention shall be explicitly excluded.
Article 22 Changes to the Terms and Conditions, interpretation and their Location
1. The Dutch version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
2. The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.