General terms and conditions of the private company
with registered office in Roermond (Netherlands), trade register number: 64757447
Article 1 – definitions
In these terms and conditions the following terms have the following meaning:
1) SPR: the private company Sekisui Pipe Renewal B.V., with registered office in 6045 JB Roermond at Metaalweg 7, trade register number 64757447.
2) Customer: natural person or legal entity with a contractual relationship with SPR, in particular, but not exclusively, on the basis of a purchase or lease agreement or a service provision agreement, as well as the natural person or legal entity wishing to enter into a contractual relationship with SPR.
Article 2 – scope of application
These terms and conditions apply to all agreements with SPR, as well as to all offers and quotations of SPR.
Article 3 – quotations and conclusion of agreements
1) Quotations and other offers are subject to contract and can always be revoked by SPR within 3 (three) workdays after receipt of the written acceptance.
2) An agreement is only concluded at the moment of the dispatch of the order confirmation by SPR. The order confirmation is deemed to be a correct and complete representation of the agreement between SPR and its customer, unless within 7 (seven) days after dispatch of the order confirmation by SPR the customer has objected in writing to its content.
3) An agreement is furthermore concluded in case SPR makes deliveries or provides services in conformity with a quotation, dispatch note or invoice.
4) If SPR incurs costs for a quotation, such costs should be reimbursed by the customer to SPR, unless otherwise agreed upon in writing.
5) Quotations and all corresponding documents are and will remain SPR's property.
6) A quotation and the corresponding documents and/or information should be returned by the customer upon SPR's first request. The customer undertakes, even if no agreement is concluded with SPR, to observe absolute secrecy about the quotation, all corresponding documents and other information the customer has received from SPR.
7) An agreement can only be cancelled or modified by SPR's customer after SPR's written consent. In such case SPR has the right to claim from the customer all damage or costs ensuing for SPR from this, including any lost profit.
8) Except for SPR's prior permission in writing it is forbidden to the customer to transfer rights or obligations from the agreement with SPR to third parties, including companies affiliated with the customer.
9) If two or more parties jointly contract with SPR, they are jointly and severally liable for the full performance of the obligations from that agreement.
10)SPR has the right to have a third party to be designated by SPR perform the agreement it has concluded with the customer. The customer hereby declares in advance to agree with the transfer by SPR to a third party of all rights and obligations ensuing from the agreement concluded by the customer with SPR.
Article 4 – prices
1) Prices for the delivery of goods, the lease of goods, the performance of services, or otherwise, are based on the cost price applying for SPR at the time of the conclusion of the agreement and are:
a. exclusive of VAT and other charges;
b. net cash before delivery at SPR's address, or at an address to be designated by SPR, or at an address agreed upon in writing prior to the delivery between SPR and its customer.
2) In case of a change of the cost price before delivery has taken place, SPR has the right to adjust the price laid down in the agreement with due observance of the change in the cost price. In case of a price increase SPR's customer has the right to terminate the agreement no later than 7 (seven) days after the written announcement of the price increase by SPR to its customer. In that case the customer can only terminate the agreement by means of a written notification to SPR with due observance of the period mentioned in the preceding sentence.
Article 5 – delivery term
1) Delivery terms will never be considered fatal terms, unless expressly agreed upon in advance and in writing between the parties. The delivery term starts at the moment that the agreement has been concluded and all data needed for the performance of the agreement is in SPR's possession, and runs until the moment of delivery.
2) Exceeding a delivery term stated by SPR does not give the customer the right to terminate the agreement, to claim damages or to suspend its payment obligation, unless it concerns a fatal term agreed upon in writing between the parties and the failure to meet the term is due to SPR's gross or serious negligence.
3) Delivery terms, fatal ones included, can be extended by or for the time that the customer has failed to pay due and payable amounts to SPR, from whatever legal relationship between SPR and the customer.
4) If the goods have been delivered, but due to an act or omission of SPR's customer they must be stored, the costs associated with this will be for the customer's account and the risk will also be fully for the customer's account.
5) If in accordance with the agreement concluded between the parties, the goods should be delivered by SPR at an address stated by the customer, the manner of packaging and transport will, if possible, be adjusted to the customer's requirements, whereby SPR however eventually decides how this will be done. Furthermore SPR does not accept any liability in this respect, unless in case of gross or serious negligence on the part of SPR.
6) The transport of goods will at all times be for the customer's account and risk, which also applies when the transport is taken care of by or by order of SPR, barring prior other arrangements in writing.
Article 6 – complaints-grievances
1) Complaints arising from incomplete or incorrect delivery of goods, or grievances because of defects in goods should be reported in writing to SPR within seven days after the time of delivery of the goods. Failure to observe this period has the consequence that guarantee obligations agreed upon in writing, rights to damages, or the right to termination based on these complaints or grievances will lapse.
2) SPR does not guarantee a minimum lifetime or shelf-life for the goods it has delivered, unless expressly agreed upon in writing.
3) If the complaint or grievance concerns a service delivered by SPR, this complaint or grievance should be reported in writing to SPR within seven days after the time at which the customer has arrived at the opinion that the delivered service is not in conformity with the agreement concluded between the parties.
4) Goods about which complaints are made must not have been processed, assembled or built in.
5) The acceptance of complaints or grievances by SPR does not imply that SPR considers those complaints or grievances as being submitted in time. A complaint or right to complain will also lapse, in case the customer has taken the good into use or has the good taken into use by others.
6) In case of a complaint or grievance on good grounds SPR will replace the goods it has delivered, or adapt those goods such that they actually comply, this to SPR's discretion. SPR always has the right to refrain from replacement or adaptation of goods it has delivered, if such replacement or adaptation can in reason not be required from SPR. A situation as referred to in the preceding sentence does in any case exist, if the costs of replacement or adaptation of the goods delivered by SPR exceed the invoice amount of the goods concerned.
7) In case SPR is obliged to pay any damages, SPR limits its obligation to damages to those cases in which the customer proves that its damage has been caused by SPR's gross or serious negligence. SPR expressly limits its obligation to pay damages to the invoice amount of the agreement concluded between the parties. SPR excludes every liability for all consequential damage or loss of its customer.
8) The customer will indemnify SPR against all claims of third parties concerning damage or loss suffered or to be suffered by these third parties with due observance of what has been stipulated in this provision and these terms and conditions.
Article 7 – (extended) retention of title
1) In the case of a sale of goods by SPR to the customer the ownership of the goods sold will only pass after the following payments have been made in full to SPR:
a. the purchase price payable by the customer for the goods and any further amounts payable, including interest and costs, in respect of all goods or services delivered or to be delivered to the customer according to contract;
b. every claim because of the customer's failure to comply with any agreement with SPR.
2) SPR has the right to retain the goods in question until the customer has paid the full amount due, including the costs ensuing for SPR from this right of retention.
3) All goods in the customer's possession, originating from SPR, are always deemed to be the goods stated on the unpaid invoices of SPR, insofar as this quantity of goods in the customer's possession does not exceed the quantities stated on the unpaid invoice.
4) It is not permitted to the customer to pledge unpaid goods, either through a nonpossessory pledge or otherwise, or to establish (or have others establish) any other real right on them for the benefit of a third party.
5) It is permitted to the customer to alienate delivered, but not yet paid goods, but exclusively within the framework of its ordinary business operations, unless SPR has demanded in writing from the customer to make the delivered goods immediately available to SPR. In that case the customer should keep the goods separately and mark them as being the property of SPR.
6) The customer grants SPR the right to enter, if SPR considers this necessary, all those places where products delivered by SPR are located, in order to enable SPR to exercise its right of ownership and to take back the unpaid goods. This without prejudice to any other rights of SPR.
Article 8 – lease
1) A lease term between SPR and the customer will start on the date and time agreed upon and in any case at the moment that leased goods are collected by the customer at SPR, or are delivered by SPR at the customer.
2) The lease term will end on the date and time agreed upon.
3) When the lease term agreed upon is exceeded, SPR will charge to the customer its current daily rate for the leased goods or, to SPR's discretion, the daily rate based on the lease concluded between SPR and the customer.
4) In accordance with Article 5 (1) it applies for the delivery of leased goods that terms will never be considered as fatal terms, except in the case that such has been expressly agreed upon in advance and in writing between the parties.
5) The leased goods will be delivered by SPR in such condition that they are ready for use. The installation and, if necessary, connection of the goods are taken care of by the customer who itself is fully responsible for the presence of the necessary facilities, such as for instance electricity, for the operation of the leased goods.
6) The customer will see to a proper insurance of the leased goods against theft, fire and damage during the lease period. SPR always has the right to demand from the customer a copy of the policy in question.
7) During the lease term the customer will be liable for all damage to the goods, whatever its cause.
8) The customer should report damage to the goods, which also includes theft, immediately after discovery in writing to SPR. Damage or missing goods will be charged by SPR to the customer and should be compensated by the customer in accordance with the values attached to them by SPR.
Article 9 – payment
1) The customer should pay an invoice on its agreed due date without subtraction or setoff of possible claims of the customer and without suspension, but in any case, if no due date has been agreed upon, within 30 (thirty) days after the invoice date. Payment should be made in euro, or in another currency agreed upon beforehand in writing, into a bank or giro account to be designated by SPR. In case of failure to pay in time the customer will be in default by operation of law and will have to pay to SPR the statutory commercial interest by virtue of Article 6:119a Civil Code. The value date of the receipt of the payment by SPR will count as date of payment.
2) Payments will first be applied to settle due costs, subsequently interest and then the due principal sum in the order of their age, irrespective of what the customer states in respect of the payment.
3) As soon as the customer is in default, SPR will be entitled to suspend any further deliveries or work and to terminate the agreement between the parties, insofar as not yet performed by SPR, without prejudice to SPR's right to compensation of all damage and loss, including lost profit.
4) In case the customer is in default with any obligation towards SPR, the customer will also be in default in respect of all other claims which SPR has against the customer.
5) If for the collection of its claim SPR must engage a third party, the customer will have to pay extrajudicial costs for this. These extrajudicial costs will be calculated in conformity with the Out-of-Court Settlement (Standards for Cost Compensation) Act (Wet normering voor de vergoeding van kosten ter verkrijging van voldoening buiten rechte) and the corresponding Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor Buitengerechtelijke Incassokosten) (BIK Decree).
6) Objections against (the amount of) an invoice should be made known to SPR in writing within 7 (seven) days after dispatch of the invoice at the risk of lapse. Such objection does not suspend the payment obligation.
Article 10 – force majeure
1) If due to force majeure SPR is unable to fulfil its obligations from the agreement concluded between the parties, SPR will on that ground have the right to suspend or terminate the agreement in whole or in part by simple written notification to the customer, without SPR being obliged to pay any compensation to the customer.
2) Force majeure is understood to mean every circumstance beyond SPR’s control, because of which performance of the agreement can in reason not be required from SPR, hence a non-attributable failure to perform.
3) Force majeure is also, but not exclusively, understood to mean: mobilisation, war and threat of war, revolt, strike, acts of terror, demonstrations, lack of personnel, operational and transport failures of whatever nature, computer failures, breach of contract by suppliers, epidemics, impediments caused by measures, laws and decisions of international, national or regional (government) authorities, fire, explosion, frost, nuisance by snow, flooding, storm damage and other (natural) disasters.
Article 11 – failure to perform, termination, dissolution, suspension
1) Without prejudice to SPR's other rights, including the right to performance or damages, SPR has the right to terminate or dissolve the agreement with the customer, or to suspend its performance, in full or in part with immediate effect, without judicial intervention, if:
a. the customer dies, applies for suspension of payment, files for a bankruptcy order or requests to be admitted to the statutory debt rescheduling arrangement;
b. bankruptcy proceedings are instituted against the customer;
c. the business of the customer is closed down or liquidated;
d. a private composition is offered by or on behalf of the customer;
e. any asset of the customer is attached either as a precautionary measure or for execution
f. by virtue of any statutory obligation an announcement of inability to pay by or on behalf of the customer is made.
2) In the cases mentioned under 1 all SPR's claims against the customer will be immediately due and payable.
3) The customer should immediately inform SPR, if a situation mentioned under 1 exists.
Article 12 – lapse of rights
Every claim of the customer against SPR will lapse, if within 12 (twelve) months at the latest after the customer's written complaint pertaining to this claim no legal action has been instituted against SPR.
Article 13 – partial nullity
If one or several provisions in these terms and conditions are null and void or are annulled by the customer or by the court or are without force, the other provisions of these terms and conditions will continue to apply. In such case SPR and the customer will enter into consultation in order to agree new provisions as replacement of the void or nullified provisions, whereby as much as possible the purpose and purport of the original provision will be taken into account.
Article 14 – translations
These terms and conditions have originally been drawn up in the Dutch language. If these terms and conditions are translated into another language, the Dutch text will be binding in case of a difference of opinion about the content or purport of these terms and conditions.
Article 15 – applicable law and choice of forum
1) Dutch law will exclusively apply to all quotations, offers and agreements with SPR, as well as to possible disputes ensuing from them. Insofar as the Convention on the International Sale of Goods would be applicable under Dutch law, its application is excluded.
2) The parties will submit all disputes for settlement in first instance to the competent court of the place of SPR's registered office, if and insofar as this is not contrary to mandatory law. SPR always has the right to deviate from this rule of jurisdiction and to apply the statutory rules of jurisdiction.
Article 16 – final stipulation
If SPR fails in a certain case to demand or claim compliance with one or several of these terms and conditions, the conclusion cannot be drawn from this that SPR has waived compliance with the other terms and conditions, nor that SPR would not be entitled to claim strict compliance with all terms and conditions in the future.
Filed on 17-02-2016 at the registry of the Limburg District Court, Roermond location, under file number 1-2016.