Article 1: applicability
1.1. These terms and conditions apply to all offers that M C E.g. do, on all agreements they connect and to all agreements that may result. The provider/supplier is MARSMAN e.g. those used these terms. This is referred to as the contractor or seller. The other party is referred to as principal or buyer.
1.2. these conditions may be used only by MARSMAN B.V.
1.3. Terms and conditions of the customer do not apply and are expressly rejected.
Article 2: offers
2.1. All offers are made without engagement.
2.2. If client pay the supplier data, drawings etc. provided, the contractor may rely on the accuracy of this and he will base its offer this.
2.3. The prices on offer are based on delivery ex works, in accordance with Incoterms 2000. The prices are exclusive of turnover tax and packaging.
2.4. if its offer is not accepted, the contractor has the right to all charges that he had to make his offer to do to charge the customer.
Article 3: intellectual property rights
3.1. Unless otherwise agreed, the supplier retains the copyrights and all industrial property rights on the offers made by him, provided designs, illustrations, drawings, models, software etc. (trial).
3.2. The rights to the data referred to in paragraph 1 shall remain the property of the contractor to the client regardless of whether costs have been charged for its manufacture. This data may not be copied without the express consent of the contractor, be used or shown to third parties. For infringement of this provision, the client shall pay the supplier a penalty of 25000 Euro. In addition to this penalty may be claimed compensation under the law.
3.3. the client must have the data supplied to him as referred to in paragraph 1 at the first request within the period specified by the contractor. For infringement of this provision, the client shall pay the supplier a penalty of Euro 1000 per day. In addition to this penalty may be claimed compensation under the law.
Article 4: advice, designs and materials
4.1. Client cannot derive any rights from advice and information from the contractor if they do not relate directly to the order.
4.2. the client is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of materials prescribed by him or on his behalf.
4.3. Client shall indemnify the contractor against any claim by third parties relating to the use of drawings, calculations provided by or on behalf of the client, samples, models and the like.
4.4. the client may want to use the materials that the supplier before these processed for their own account (let) investigations. If the contractor suffers damage as a result, this shall be borne by the customer.
Article 5: delivery time
5.1. The delivery period quoted by the contractor is approximate.
5.2. In fixing the delivery period the contractor is that he can perform under the circumstances known to him at that time.
5.3. the delivery time starts with about all the technical details, all necessary data, final drawings etc. in the possession of the supplier, the agreed (term) payment has been received and the necessary conditions for the execution of the contract are met.
5.4. (a). If there are any other circumstances than those which were known to the supplier when he established the delivery time, the contractor may extend the delivery time with the time required for the command to perform under these conditions. If the work can not be fitted into the planning schedule of the contractor, these will be completed as soon as his planning schedule permits this.
- in the event of contract Extras, the delivery period shall be extended with the time required to deliver materials and components therefor and for the extra work. If the extra work cannot be fitted into the planning schedule of the contractor can, the work will be completed as soon as the schedule permits.
- If there is suspension of obligations by the contractor, the delivery period shall be extended by the duration of the suspension. As continuation of the work cannot be fitted into the planning schedule of the contractor, the work will be completed as soon as the schedule permits.
- If there is unworkable, the delivery period shall be extended again with the stagnation time.
5.5. exceeding the agreed delivery time in no case entitled to compensation unless this has been agreed in writing.
Article 6: transfer of risk
6.1. At delivery ex works, in accordance with Incoterms 2000; the risk of the case is about at the time that this seller makes available to buyer.
6.2. Irrespective of the provisions of the previous paragraph, the client and the Contractor agree that the contractor shall arrange for the carriage. The risk of storage, loading, transportation and unloading rest also in that case the client. The customer may insure themselves against these risks.
6.3. in case the seller installs and/or assembles sold the risk of the business at the time buyer the business available to seller in the premises of the seller or at another agreed place.
6.4. If at sale there is trade-off and copper awaiting delivery of the new case to exchange the case continues to use, the risk of the buyer until the moment he Exchange case at this in the possession of seller.
Article 7: price changes
7.1. As of the date on which the contract is concluded four months elapse and the fulfilment by the supplier is not yet complete, an increase in the price-determinants may be passed on to the client.
7.2. payment of the price increase as referred to in paragraph 1 shall take place together with payment of the principal or the last instalment.
7.3. If goods are delivered by the client and the contractor is prepared to use them, the contractor may up to 20% of the market price of the delivered goods.
Article 8: Impracticability of the contract
8.1. The supplier has the right to suspend the fulfilment of its obligations, if he as a result of circumstances not foreseeable at the conclusion of the agreement and which are beyond his control, is temporarily prevented from fulfilling his obligations.
8.2. Under circumstances that were not foreseeable by the contractor and which are beyond his control, include the fact that suppliers and/or sub-contractors of the contractor not to fulfil their obligations or not, weather conditions, earthquakes, fire, loss or theft of tools, loss of to process materials, road blockades, strikes or work stoppages and import or trade restrictions.
8.3. the supplier is not entitled to suspend if performance is permanently impossible or if a temporary impossibility has lasted more than six months. The agreement may then be dissolved for that part of the obligations have not been fulfilled. In that event, the parties are not entitled to compensation as a result of the termination or to suffer damage.
Article 9: scope of work
9.1. The client must ensure that all licences, exemptions and other decisions that are necessary to carry out the work are obtained in good time.
9.2. In the price of the work does not include: a. the cost of raw-, pile-driving, cutting, breaking, Foundation work, bricklaying, plastering, painting, wallpapering, repairs or other construction work;
(b) the costs of connecting gas, water, electricity or other infrastructural facilities;
- the costs to prevent or limit damage to goods present on or near the work;
- the costs of removing materials, building materials or waste;
- travel and accommodation.
Article 10: changes to the work
10.1. Changes in the work result in any case in more or less work if: a. There is a change in the design or contract documents;
- the information provided by the client does not comply with the reality;
- estimated quantities with more than 10%.
10.2. Additional work is calculated based on the value of the price determinants applicable at the time that the extra work is carried out. Less work is settled on the basis of the value of the price determinants applicable at the time of the conclusion of the agreement.
10.3. If the balance of the less work that exceeds the extra work, the contractor may at the final invoice 10% of the difference of the client. This provision does not apply to less work that is due to a request of the supplier.
Article 11: execution of the work
11.1. Client ensures that the supplier can carry out activities without interruption and at the agreed time and that he is in the performance of his work to have the necessary facilities, such as:-gas, water and electricity;
-lockable and dry storage space;
-on the basis of the occupational health and Safety Ordinance and regulations prescribed facilities.
11.2. the client is liable for all damages resulting from loss, theft or burning of or damage to tools, materials, and other matters of the contractor which are located at the place where the work is performed.
11.3 When the client fails to fulfil the obligations as set out in the previous paragraphs and thereby delay in the execution of the work, the work will be carried out as soon as the planning schedule of the contractor permits. In addition, the client is liable for all damage suffered by the contractor.
Article 12: completion of the work
12.1. The work is deemed to have been completed when: a. the client has approved the work;
- the work has been used by the customer. The client takes a part of the work into use then that part be deemed to have been completed;
- the contractor in writing to client has informed that the work has been completed and the client in writing within 14 days of notification, or the work has been approved;
- the client does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and that commissioning of the work does not stand in the way.
12.2. The customer does not approve the work then he obliged stating reasons in writing to the contractor.
12.3. The customer does not approve the work he shall allow the contractor work anew. The provisions of this article shall thereupon again apply.
Article 13: Liability
13.1. The contractor is liable for damage which the customer suffers and which is the direct and sole result of a shortcoming attributable to the contractor. However, only eligible for compensation for that damage which the contractor is insured, or had reasonably assured.
13.2. Ineligible: a. trading losses, including stagnation damage and lost profits;
- respect damage. Under respect damage is defined as damage caused by or during the execution of the contract work is done to things being worked on or to business that are located in the proximity of the place where work is done;
- damage caused by gross negligence or willful misconduct of auxiliaries.
13.3. The client indemnifies the supplier against all claims from third parties for product liability as a result of a defect in a product that is delivered by the customer to a third party and that (partly) consisted of products delivered by the supplier and/or materials.
Article 14: Warranty
14.1. State contractor for a period of six months after delivery for the good execution of the agreed performance.
14.2. If the agreed performance consists adoption of work than is the contractor for the period referred to in paragraph 1 for the soundness of the construction delivered and the materials used, provided he was free in the choice of theMarsman If it turns out that the delivered construction or the materials used are unsound, the contractor shall repair or replace this. The parts repaired or replaced by the contractor at the contractor must be sent free of charge to the employee. Disassembly and Assembly of these parts and any travel and accommodation costs will be borne by the customer.
14.3. The agreed performance consists in the editing of materials supplied by the client than is the contractor for the period referred to in paragraph 1 for the soundness of the performed operation.
If it turns out that an edit is not properly carried out, the contractor shall make the choice if he:-perform the operation again. In this case, client shall provide new material for its own account;
-Restores the default. In this case, the client the material free of charge to the contractor;
-provide the customer with a credit note for a proportionate part of the invoice.
14.4. The agreed performance consists in delivery of a case then the supplier during the period referred to in paragraph 1 for the soundness of the delivered iteMarsman
If it turns out that the delivery has been unsound, then the case must be sent back free of charge to the employee. Then the contractor shall make the choice if he:-to repair the object;
-the case replaces;
-provide the customer with a credit note for a proportionate part of the invoice.
14.5 the agreed performance (partly) from the installation and/or Assembly of a delivered item is the contractor for the period referred to in paragraph 1 for the soundness of the installation and/or Assembly.
If it turns out that the installation and/or Assembly not properly performed, the contractor shall repair it. Any travel and accommodation costs will be borne by the customer.
14.6. For those parts for which the client and the supplier expressly agreed upon in writing applies factory warranty. As principal opportunity to take note of the content of the manufacturer's warranty will this take the place of guaranteed under this article.
14.7. the client the contractor must in all cases provide an opportunity to repair any defect or the operation again.
14.8. The client may only invoke guaranteed after all his obligations towards the supplier has met.
14.9. a. no warranty is given for defects that are a result of:-normal wear and tear;
-non or incorrect maintenance;
installation, Assembly, modification or repair by the customer or by third parties.
- no guarantee is given for delivered goods that were not new at the time of delivery.
Claims the customer may on a defect in the product, when he is not within 14 days after the defect or could reasonably be expected to discover the contractor shall complaint.
uncollected goods if goods after the expiry of the delivery not have declined, they remain at the disposal of the client. Uncollected goods are stored at the expense and risk of the client. The contractor may always use the power of article 6:90 of the Dutch civil code.
Article 17: payment
17.1. Payment is made at the place of establishment of the supplier or by the supplier on a designated account.
17.2. Unless agreed otherwise, payment must be made as follows: a. for counter sales: cash;
- If installment payment has been agreed:-40% of the total price in command;
-50% of the total price after supply of the material;
-10% of the total price upon completion;
- in all other cases, within 30 days of the invoice date.
17.3. Regardless of the agreed payment terms is client is obliged at the request of a contractor to provide security for its payment. As principal here within the time limit, not immediately in default.
The contractor shall in that case be entitled to dissolve the agreement and his loss or damage from the customer stories.
17.4. the right of the client to set off its claims on the supplier is excluded, unless the contractor has been declared bankrupt.
17.5. the full claim for payment is payable on demand if: a. a payment period has been exceeded;
- the customer has been declared bankrupt or has applied for a suspension of payments;
- seizure of property or accounts receivable of the client;
- the client (company) is dissolved or wound up;
- the client (natural person) is placed under guardianship or dies.
17.6. If payment has not been made within the agreed term of payment, the customer shall owe interest directly to the supplier. The interest rate is 10% per year, but is equal to the legal interest rate if it is higher. For the purpose of calculating the interest part of the month seen as a full month.
17.7. If payment has not been made within the agreed term of payment is principal contractor all extrajudicial costs due with a minimum of EUR 50.
The costs are calculated on the basis of the following table: about the first Euro 3000 15% of the amount in excess of Euro 6000 10% over the excess up to Euro 15000 8% of the amount in excess of Euro 60000 5%, over the excess from Euro 60000 3% If the actual extrajudicial costs exceed those in the above-mentioned table, the costs actually incurred shall be owed.
11.1. If the contractor legal proceedings in the incurred all costs incurred related to this procedure shall be borne by the customer.
Article 18: retention of title and Lien
18.1. After delivery the supplier remains owner of goods supplied as long as client: a. fails or will fail in the fulfilment of its obligations under this agreement or other similar agreements;
- for the work to be performed under such agreements provided or still does not pay or will pay;
- claims arising from non-compliance with the agreements, such as damage, penalties, interest and costs, has failed.
18.2. As long as title to delivered goods is retained by the client, this outside its normal business concerns.
18.3. After the contractor has invoked his reservation of title, he may take back the goods delivered. Principal contractor to enter the place where the goods are situated.
18.4. If the contractor cannot do on his reservation of title because the delivered goods have been mingled, distorted or verified, the client is required to pledge to the newly formed business contractor.
Article 19: Dissolution
If the customer wishes to terminate the agreement that there is a shortcoming of the contractor and the contractor agrees, the agreement is dissolved by mutual consent. The contractor shall in that case be entitled to reimbursement of all suffered loss, lost profits and costs incurred.
Article 20: applicable law and choice of forum
20.1. The Dutch law is applicable.
20.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor do any other international regulations whose exclusion is permitted.
20.3. Only the civil court with jurisdiction over the place of establishment of the contractor may take knowledge of disputes, unless this is contrary to mandatory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules for jurisdiction.
20.4. Parties may agree a different form of dispute resolution, such as arbitration or mediation.