Article 1 General
- These terms and conditions apply to every offer, quotation and agreement between Van Buren Patent Management BV, hereinafter : ‘User’, and a Client to whom the User has applied these terms and conditions, insofar as parties have not, in writing, explicitly stated otherwise.
- These terms and conditions also apply to agreements with User, for the execution of which User will employ third parties.
- These general terms and conditions also apply to the employees of User and his management.
- Any purchase or other terms and conditions applied by User, are explicitly refused.
- If one or more provisions in these terms and conditions at any time in whole or in part, should be null and void or destroyed, then its remainder in these general terms and conditions apply in full. User and the Client will then discuss or agree upon new stipulations replacing the null and void, in which as much as possible the purpose and intent of the original provisions are taken into account.
- If uncertainty exists regarding the interpretation of one or more provisions of these general terms and conditions, then explanation must take place ’to the spirit’ of these conditions.
- If there is a situation between parties that is not listed and regulated in this terms and conditions, then this situation must be assessed to the spirit of these general terms and conditions.
- If User does not always demand strict adherence to these conditions, it does not mean that its stipulations do not apply, or that in other cases, User would lose in any way the right to demand strict compliance with the stipulations of these terms and conditions.
Article 2 Quotations and offers
- All quotations and offers from User are without obligation, unless a time period for acceptance is determined in the quotation. If no time period for acceptance was determined, then in no way shall any right be claimed if the product to which the offer or the offers relates to, in the meantime is no longer available.
- User cannot be held to his quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an apparent mistake or error.
- Prices listed in a quotation or offer are exclusive of VAT and other Government levies, including expenses possibly made within the scope of the agreement, travel and lodges and shipping and handling, unless stated otherwise.
- If the acceptance deviates (on secondary conditions) from the offer included in the quotation or offer, then User shall not be bound by it. This means that the agreement is not in accordance with said deviating acceptance, unless User indicates otherwise.
A combined quote shall not oblige User to execute part of the assignment against a corresponding part of the given price. Offers or tenders shall not automatically apply to future orders.
Article 3 Length of contract; execution time, transfer of risk, implementation and amendment of agreement; price increase
- The agreement between the User and the Client is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise, or if parties explicitly and in writing agree otherwise.
- It is never a deadline if for the implementation of certain tasks or for the supply of certain things, a time limit is agreed upon or specified. If a time limit is exceeded the Client must in writing, send the User a notice of default. User should still be given a reasonable time period to implement the agreement.
- User will execute the agreement to the best of his knowledge, ability and in accordance with the demands of good workmanship.
- User has the right to have certain work done by third parties. The applicability of articles 7:404, 7:407 section 2 and 7:409 BW is explicitly excluded.
- If User or third parties engaged by User, perform tasks in the context of the work assigned, at the location of the Client or at a location designated by the Client, then the Client will, within any reasonable demand, facilitate them free of charge.
- Delivery by User is ex company. The Client is obliged to accept the goods at the time they are made available to him. If the Client refuses or fails to provide information or instructions necessary for delivery, then User will be entitled to store the goods at the expense and risk of the Client. The risk or loss, damage or depreciation are for the Client’s account from the moment goods become available to the Client.
- User shall be entitled to execute the agreement in phases and, therefore, also invoice the executed part separately.
- If the agreement is executed in phases, then User can suspend the execution of the parts belonging to the subsequent phase, until the Client has approved in writing the results of the preceding part.
- The Client shall ensure that the User is provided, in a timely manner, all data which the User deems necessary or which the Client reasonably can be expected to understand to be necessary, for execution of the contract. If the data required for the implementation of the agreement is not given to the User on time, then the User has the right to suspend the execution of the agreement and to charge any additional costs resulting from the delay thereof to the Client, calculated on the base of the current rates. The implementation shall not start any time sooner than after the Client has provided the data to User. User shall not be liable for damage of any nature caused by the fact that User has implemented on the basis of incorrect and/or incomplete data provided by the Client.
- If, during the execution of the agreement it becomes necessary to amend or complement the agreement so as to ensure a proper implementation thereof , then the parties will on time and by mutual consent adjust the agreement. If the nature, scope or contents of the agreement, whether or not is changed at the request or appointment of the principal or the competent authorities et cetera, as a result of which the agreement thereby is changed qualitatively and/or quantitatively, then this can have consequences for what was originally agreed. In doing so the amount originally agreed can also be increased or decreased. As a result the agreed amount can be increased or decreased. User will therefore in an advance quote be detailed as much as possible. By modifying the agreement the originally given time period of implementation may also be changed. The Client accepts the possibility of amending the agreement, including the change in price and time of execution.
- If the agreement is amended, including an addition, then User shall be entitled to first implement this addition, after approval is given by the designated person at the User and the Client has agreed to the specified price and other conditions, including the agreed time when that addition will be implemented. Not to carry out, or not immediately carry out the modified contract is not a default of User and is no reason for the Client to suspend or cancel the agreement.
- By no means intending to come into default, User can refuse a request to amend the agreement if this can, qualitatively and/or quantitatively, have consequences, for example for the work to be performed or to be delivered in that context.
- If the Client should come into default in the proper fulfillment of what he is held against by User, then the Client is liable for all damages, directly or indirectly, suffered by User.
- If User and Client agree upon a fixed fee or fixed price, then User is at all times, nevertheless, entitled to increase this fee or this price without the Client having the right to dissolve the agreement for that reason, but only if the increase of the price is the result of a privilege or obligation under the laws or regulations, or based on an increase in the price of raw materials, wages et cetera, or on other grounds that were not reasonably foreseeable when the agreement was entered into.
- If the price increase exceeds 10%, other than as a result of an amendment to the agreement and takes place within three months after the establishment of the agreement, then only the Client who relies on title 5 section 3 of book 6 BW, is entitled to dissolve the agreement by a written statement, unless User
– then still is prepared to execute the agreement based on the originally agreed terms and conditions;
-if the price increase is the result of a privilege or obligation of the User under the law;
-if it is agreed that the delivery will take place more than three months after the establishment of the agreement;
– or, in case of delivery of material, it is stipulated that the delivery will take place more than three months after the purchase.
Article 4 Suspension, dissolution and interim termination of the agreement
- User is entitled to suspend the fulfillment of the obligations or to dissolve the agreement, if the Client fails to not, not fully or not timely, comply with the obligations resulting from the agreement after the establishment of the agreement. If User becomes aware of circumstances giving good grounds to fear that the customer will not fulfill the obligations, if the Client is requested when the contract was signed to assure the fulfillment of his obligations resulting from the agreement, and this guarantee is not provided or insufficient, or if the delay on the part of the Client no longer exists, then User cannot be pressured to fulfill the agreement against the originally agreed conditions.
- Furthermore, User is authorized to dissolve the agreement if circumstances of such a nature arise that fulfillment of the obligations becomes impossible, or, if otherwise, circumstances occur that not adhering to maintenance of the agreement cannot reasonably be demanded from the User.
- If the agreement is dissolved, the User’s claim against the Client is immediately due and payable. If User suspends fulfillment of the obligations, he shall retain his rights under the law and the agreement.
- If User suspends or dissolves, he is not in any way required to pay any resulting damages and costs.
- If the dissolution is attributable to the Client, User shall be entitled to compensation of the damage, including the costs, thereby created, directly and indirectly.
- If the Client fails to fulfill his obligations resulting from the agreement and this failure justifies dissolution, then User shall be entitled to terminate forthwith, with immediate effect, the agreement and without any commitment to payment of any damages or compensation, while the Client, by virtue of default, surely is required to payment of damages or compensation.
- If the agreement is terminated by User, User shall, in consultation with the Client ensure the transfer to third parties of the work that still needs to be carried out. This, unless the termination is attributable to the Client. If the transfer of work carries extra costs, then these will be charged to the Client. The User shall be obliged to comply with these costs within the time limit stipulated, unless User indicates otherwise.
- In the event of liquidation, of (application for) bankruptcy, suspension of payments or of a confiscation – if, and insofar as the ban is not lifted within three months – at the expense of the User, for debt restructuring or any other circumstances whereby the Client no longer can freely have access to his assets, the User is free to terminate the order or agreement instantly and with immediate effect, without any obligation to pay any damages or compensation. The User’s claims against the Client are in that case immediately due and payable.
- If the Client cancels an order already placed, in whole or in part, then the work that had been carried out and the material ordered and prepared, increased with possibly any supply and delivery costs and labor hours set aside for the implementation of the agreement, will be basically charged to the Client.
Article 5 Force majeure
- User is not obliged to fulfill any obligation to the Client if he is prevented to do so as a result of a circumstance that is not his fault, nor by virtue of law, nor a legal act, or generally accepted views in trading.
- Force majeure in these terms and conditions means, in addition to what is understood by law and jurisprudence, all external causes, foreseen or unforeseen, on which User cannot have any influence but which prevent User to fulfill its obligations, including strikes in the company of User or third parties.
- User also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the arrangement (s), occurred after User had to comply with his commitment.
User may suspend the obligations resulting from the agreement during the period that the force majeure lasts . If this period lasts longer than two months, then either of the parties shall be entitled to dissolve the agreement without any obligation to compensate damage to the other party.
- Insofar as User at the moment the circumstance of force majeure has already partially taken place, fulfilled his obligations resulting from the agreement, or shall be able to fulfill them, and insofar, separate charges can be attributed to the part already fulfilled or still to be fulfilled, the part already fulfilled or still to be fulfilled can be invoiced respectively and separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
- Payment must always be made within 14 days of the invoice date, in a manner to be indicated by User and in the currency invoiced, unless otherwise indicated by User. User is entitled to bill periodically.
- If the Client defaults in the timely payment of a bill, then Client is in default by law. The Client is then charged an interest rate of 1% per month on the outstanding amount, unless the statutory interest rate is higher, in which case the statutory interest rate applies. The interest on the amount due will be calculated from the time the Client is in default until the moment of payment of the full amount.
- User shall be entitled to have the payments made by the buyer apply firstly to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal amount and the current interest. User can, without so being in default, refuse an offer for payment, if the Client suggests a different arrangement for the allocation of payments. User can refuse full payment of the principal, if the open bills and current interest and collection costs are not paid too.
- The Client shall not be entitled to set off the amount against what he owes to User. Objections against the high amount of an invoice do not suspend the fulfillment of the payment obligation. The Client that is not entitled to claims based on section 6.5.3 (articles 231 to 247 book 6 of the DUTCH CIVIL CODE), is also not entitled to suspend payment of an invoice for any other reason.
- If the Client is in default or is in default in the (timely) execution of its obligations, then all reasonable costs incurred to have every extrajudicial costs and debts paid, shall be borne by the Client. The extrajudicial costs are calculated on the basis of what is standard in the Dutch collection practice, which at present is the calculation procedure according to Rapport Voorwerk II. If, however, higher costs for collection were reasonably made by User, the actual costs qualify for payment. The judicial and execution costs will also be charged to the Client. Besides, the Client must also pay interest on the collection costs owed.
Article 7 Retention of title
- The property delivered by the User in the framework of the agreement remains the property of the User until the Client has properly fulfilled all obligations under the agreement (s) with User.
- The property delivered by the User, that pursuant to paragraph 1. falls under the retention of title should not be resold and should never be used as a method of payment. The Client is not entitled to place as collateral the property under the retention of title, or mortgage it in any other way.
- The Client shall always do everything that can reasonably be expected from him so as to protect the rights or property of User. If third parties seize the property delivered or exercise and assert any rights thereto, then the Client is obliged to immediately notify User of these intentions. Furthermore, the Client is obliged to insure and keep insured the delivered property against fire, explosion and water damage and against theft, and at first request show this insurance to User for inspection. In case of payment of claims the User is entitled to these monies. For as much as possible the Client commits in advance to User to cooperate in all that in that context may (deemed to) be necessary or considered necessary.
- In the event that User wishes to exercise ownership rights mentioned in this article, the Client grants, in advance, unconditional and irrevocable permission to the User and third parties to be appointed by User, to access all those places where the User’s properties are located and take them back.
Artikel 8 Garanties, onderzoek en reclames, verjaringstermijn
- The materials to be delivered by User meet the usual requirements and standards which are reasonably acceptable at the time of delivery and normal use in the Netherlands for which they are intended. The guaranty referred to in this article shall apply to matters that are intended for use within the Netherlands. When used outside the Netherlands User should verify that its use is suitable for use abroad and meets the conditions that are required. User can in that case stipulate other guaranties and terms and conditions in relation to the goods to be delivered or work to be carried out.
- The guaranty referred to in section 1 of this article shall apply for a period of six(6) months after delivery, unless the nature of the product dictates otherwise, or parties have agreed otherwise. If the case relates to a guaranty provided by the User but was produced by a third party, then the guaranty is limited to the stipulations that the third party provided, unless otherwise indicated.
- Any form of guaranty will be void if a defect occurs as a consequence of, or result from injudicious or improper use, or use after the expiration date, improper storage or maintenance by the sponsor and/or by third parties when, without written consent of the User, the Client or third parties have made changes to the material or have tried to make changes and have added matters that should not have been added or that were modified or processed other than the instructions indicate. The Client is also not entitled to claims if the defect is caused by, or the result of, circumstances which User can not influence, including weather conditions (such as but not limited to, extreme rainfall or temperatures) et cetera.
- The Client shall be obliged to examine the delivered goods immediately at the time that the goods are made available to him, or the relevant activities are carried out. In doing so, the Client should examine if the quality and/or quantity of the delivered products corresponds to what has been arranged and meets the requirements that parties have agreed upon. Any visible defects must be reported in writing to User within seven days after delivery. Any non-visible defects must immediately, and in any case no later than 14 days after discovery, be reported in writing to User. The notification must give as detailed a description as possible of the defect, so that User is able to respond adequately. The Client must avail User to investigate or have a complaint investigated.
- If the Client submits a claim in a timely manner it does not suspend his payment obligations. In that case the Client remains responsible for purchase and payment of the other ordered goods and everything that he has ordered from User.
- If a defect is reported beyond the stipulated time periods, then the Client will no longer be entitled to repair, replacement or compensation.
- If it is established that a product is defect and the complaint is submitted in a timely manner, then User shall then, within a reasonable period of time after the defective product is received back, or, if return is not reasonably possible, upon written notice of the defect by the Client and at the discretion of User, replace the product or look after the repair, or pay the Client a compensation fee for replacement. In case of replacement, the Client shall be required to return the product to User and to provide the title to User, unless User indicates otherwise.
- If it is established that a complaint is unwarranted for, then the costs incurred by User, including the investigation costs, are basically the responsibility of the Client.
- After expiration of the warranty period, all expenses for repair or replacement, including administration costs, shipping costs and call-out fees, will be charged to the Client.
- By way of derogation from the statutory limitation periods, the statute of limitations for all claims and objections against User and third parties involved by User during the implementation of an agreement, will be one year.
Article 9 Liability
- If User should be liable, then this liability is limited to what is stipulated.
- User shall not be liable for damages of any kind caused as a result of User’s performance based on incorrect and/or incomplete data provided to User by the other party.
- User is not responsible nor liable for the content of written or electronic correspondence which have been drawn up by third parties and which are sent by User for and on behalf of those third parties.
- If the User would be liable for any damage, then the liability of User is limited to a maximum of twice the invoiced amount of the order, at least to that portion of the order to which the liability relates to, with a maximum of € 5000,= (five thousand euro and zero cents). If the order takes longer than half a year, the aforementioned liability shall be limited to an amount equal to the total amount that the management office has received for the assignment in the last 6 months before the occurrence of the damage of the Client.
- User shall be only liable for direct damages.
- Direct damage shall be understood to be exclusively the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage in the meaning of these terms, any reasonable costs made to have User’s faulty performance live up to the agreement, for as much as this can be attributed to User and reasonable costs made to prevent or limit the damage, to the extent that the other party shows that these costs have led to the limitation of direct damage as meant in these terms and conditions.
- User shall in no event be liable for indirect damage, including consequential damage, loss of profit, lost of savings and damage due to business interruption.
- In derogation from the statutory limitation periods, the limitation period for all claims and defenses against User and helpers involved by User in the implementation of a contract, is 1.
- 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 senior managers in charge.
Article 10 Release
- The Client releases User from any claims by third parties that suffer damage in connection with the execution of the contract, and the cause of which is attributable to other liabilities than to User’s. If for that reason, User could be held liable by third parties, then the Client shall be required to assist User without delay, both legally and otherwise, and do everything that in that case can reasonably be expected from him. Should Client be in default to take appropriate measures, then User, without notice, is entitled to do so himself. All possible costs and damages for User and third parties, are integrally for the account and risk of the Client.
Article 11 Intellectual property
- User retains the legal rights and powers which he is entitled to under the copyright laws and other intellectual property laws and regulations. User is entitled to use knowledge increased during the performance of a contract, also for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties.
Article 12 Governing law and disputes
- Only Dutch law applies In all legal relationships in which User is a party, even if in full or in part, a commitment is implemented abroad, or if the party involved in the legal relationship is residing abroad. The applicability of the Vienna Sales Convention is excluded.
- For the purpose of resolving any dispute that is a consequence of this agreement, or was created because of this agreement, or resulting from other agreements, the parties will, respectively, the most diligent party, submit a request for mediation to the Secretariat of the NAI according to the NAI Mediation rules of procedures. If that request does not lead to an overall settlement of the dispute, by signing a settlement agreement referred to in paragraph 7 (A) of the NAI Mediation rules and procedures, by an arbitration settlement judgment referred to in point 8 of that regulation, or a combination of both of these, then the dispute, at least that part of it that is not in one of the aforementioned solutions, is solely solved in accordance with the NAI rules and procedures.
Article 13 Location and amendment terms and conditions
- These terms and conditions are filed with the Chamber of Commerce in Arnhem. The most recently filed version shall always apply, or, as the case may be, the version valid at the time of the establishment of the legal relationship with User.
- The Dutch text of the general terms and conditions prevails at all times for the explanation thereof.