GENERAL TERMS AND CONDITIONS MOVILERNI B.V.
Article 1. General
- These terms and conditions apply to every offer, quotation and agreement between MoviLerni B.V., hereinafter referred to as: “Service Provider”, and a Client to which the Service Provider has declared these terms and conditions applicable, insofar as the parties have not expressly deviated from these terms and conditions in writing.
- The present terms and conditions also apply to agreements with the Service Provider, for the execution of which third parties must be involved by the Service Provider.
- These general terms and conditions are also written for the employees of the Service Provider and its management.
- The applicability of any purchase or other conditions of the Client is explicitly rejected.
- If one or more provisions in these general terms and conditions are at any time wholly or partially void or should be voided, then the provisions in these general terms and conditions remain fully applicable. The Service Provider and the Client will then enter into consultation in order to agree new provisions to replace the voided provisions, taking into account as much as possible the purpose and scope of the original provisions.
- If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, then the explanation must take place ‘in the spirit’ of these provisions.
- 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.
- If the Service Provider does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the Service Provider would in any way lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.
Article 2. Quotations and offers
- All quotations and offers from the Service Provider are without obligation, unless a period for acceptance has been set in the quotation. If no acceptance period has been set, no right can be derived from the quotation or offer in any way if the product to which the quotation or offer relates is no longer available in the meantime.
- The service provider cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or error.
- The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred under the agreement, including travel and accommodation, shipping and administration costs, unless otherwise indicated.
- If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, the Service Provider is not bound by it. The agreement will not be concluded in accordance with this deviating acceptance, unless the Service Provider indicates otherwise.
- A composite quotation does not oblige the Service Provider to perform part of the assignment at a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3. Contract duration; execution periods, transfer of risk, execution and amendment of the agreement; price increase
- The agreement between the Service Provider and the Client is entered into for an indefinite period of time, unless the nature of the agreement results otherwise or if the parties expressly agree otherwise in writing.
- If a term has been agreed or specified for the execution of certain activities or for the delivery of certain goods, this is never a fatal term. If a term is exceeded, the Client must therefore give service provider written notice of default. The service provider must be given a reasonable period of time to still implement the agreement.
- Service provider will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. This is based on the current state of science.
- The service provider has the right to have certain activities carried out by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
- If work is carried out by the Service Provider or third parties engaged by the Service Provider in the context of the assignment at the location of the Client or a location designated by the Client, the Client shall take care of the facilities reasonably desired by those employees free of charge.
- Delivery takes place on the company of the Service Provider. The Client is obliged to take delivery of the goods at the time they are made available to him. If the Client refuses to take delivery or is negligent in providing information or instructions necessary for the delivery, the Service Provider is entitled to store the goods at the expense and risk of the Client. The risk of loss, damage or depreciation passes to the Client at the time when goods are available to the Client.
- The service provider is entitled to execute the agreement in several phases and to invoice the part thus executed separately.
- If the agreement is executed in phases, the Service Provider may suspend the execution of those parts that belong to a next phase until the Client has approved the results of the preceding phase in writing.
- The Client shall ensure that all data, which the Service Provider indicates is necessary or which the Client should reasonably understand to be necessary for the execution of the agreement, is provided to the Service Provider in a timely manner. If the data necessary for the execution of the agreement have not been provided to the Service Provider in a timely manner, the Service Provider has the right to suspend the execution of the agreement and / or to charge the Client the additional costs resulting from the delay according to the then usual rates. The execution period does not start until after the Client has made the data available to the Service Provider. The Service Provider is not liable for damage of any kind, because the Service Provider has relied on incorrect and / or incomplete data provided by the Client.
- If, during the execution of the agreement, it appears that it is necessary to amend or supplement it for the proper execution thereof, the parties will adjust the agreement in a timely manner and by mutual agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or direction of the Client, of the competent authorities, etc., and the agreement is therefore changed in qualitative and / or quantitative terms, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or reduced. The service provider will make a price statement as much as possible in advance. An amendment to the agreement may also change the period of performance originally specified. The Client accepts the possibility of amending the agreement, including the change in price and term of execution.
- If the agreement is amended, including a supplement, then the Service Provider is entitled to implement it only after agreement has been given by the person authorized within the Service Provider and the Client has agreed to the price stated for the execution and other conditions, including the then to be determined time at which this will be implemented. Failure or failure to immediately execute the amended agreement does not constitute a default of the Service Provider and is not grounds for the Client to terminate or cancel the agreement.
- Without being in default, the Service Provider may refuse a request to amend the agreement, if this could have qualitative and / or quantitative consequences, for example for the work to be performed or goods to be delivered in that context.
- If the Client should be in default in the proper performance of what it is obliged to do towards the Service Provider, the Client is liable for all damage on the part of the Service Provider as a result, directly or indirectly.
- If the Service Provider agrees with the Client a fixed fee or fixed price, then the Service Provider is nevertheless entitled at any time to increase this fee or this price without the Client being entitled in that case to dissolve the agreement for that reason, if the increase in the price results from a power or obligation under the laws or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable when entering into the agreement.
- If the price increase other than as a result of an amendment to the agreement exceeds 10% and takes place within three months after the conclusion of the agreement, then only the Client who is entitled to invoke Title 5 section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by means of a written statement, unless the Service Provider
– is then still willing to execute the agreement on the basis of the originally agreed.
– if the price increase results from a power or an obligation on the Service Provider under the law;
– if it is stipulated that the delivery will take place more than three months after the conclusion of the agreement.
– or, upon delivery of a goods, if 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
- Service provider is authorized to suspend the fulfilment of the obligations or to dissolve the agreement, if the Client does not fulfil the obligations under the agreement, does not comply fully or not in time, after the conclusion of the agreement Service Provider has become aware of circumstances giving good reason to fear that the Client will not comply with the obligations, if the Client has been requested at the conclusion of the agreement to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient or if the delay on the part of the Client can no longer be required of the Service Provider that he will comply with the agreement under the originally agreed conditions.
- Furthermore, the Service Provider is entitled to dissolve the agreement if circumstances arise that are of such a nature that compliance with the agreement is impossible or if circumstances otherwise arise that are of such a nature that unaltered maintenance of the agreement cannot reasonably be required of the Service Provider.
- If the agreement is dissolved, the claims of the Service Provider against the Client are immediately payable. If the Service Provider suspends the fulfilment of the obligations, it retains its claims under the law and agreement.
- If the Service Provider proceeds to suspension or dissolution, he is in no way obliged to compensate for damage and costs incurred as a result in any way.
- If the dissolution is attributable to the Client, the Service Provider is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
- If the Client fails to fulfil its obligations arising from the agreement and this non-performance justifies dissolution, then the Service Provider is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the Client is obliged to pay compensation or compensation due to non-performance.
- If the agreement is terminated in the interim by the Service Provider, the Service Provider will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties. This unless the cancellation is attributable to the Client. If the transfer of the work for the Service Provider entails additional costs, these will be charged to the Client. The Client is obliged to pay these costs within the specified term, unless the Service Provider indicates otherwise.
- In the event of liquidation, of (application for) suspension of payment or bankruptcy, of attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the Client, of debt restructuring or any other circumstance whereby the Client can no longer freely dispose of his assets, the Service Provider 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. In that case, the claims of the Service Provider against the Client are immediately payable.
- If the Client cancels a placed order in whole or in part, then the work that was carried out and the goods ordered or prepared for it, plus any delivery and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the Client.
Article 5. Force majeure
- The Service Provider is not obliged to fulfil any obligation towards the Client if he is prevented from doing so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act or generally accepted views.
- Force majeure in these general terms and conditions means, in addition to what is understood in the law and jurisprudence, all external causes, foreseen or not foreseen, over which the Service Provider cannot exert influence, but which prevent the Service Provider from fulfilling its obligations. Including strikes in the company of the Service Provider or of third parties. The service provider also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Service Provider should have fulfilled its obligation.
- The service provider may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement, without obligation to compensate damage to the other party.
- Insofar as the Service Provider has already partially fulfilled or will be able to fulfil its obligations under the agreement at the time of the occurrence of force majeure, and the part fulfilled or to be fulfilled is independent value, the Service Provider is entitled to invoice the part already fulfilled or to be fulfilled separately. The Client is obliged to pay this invoice as if there 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 specified by the Service Provider in the currency in which it was invoiced, unless otherwise indicated in writing by the Service Provider. Service provider is entitled to invoice periodically.
- If the Client fails to pay an invoice on time, the Client is in default by operation of law. The Client then owes an 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 Client is in default until the moment of payment of the full amount due.
- The service provider has the right to have the payments made by the Client first to deduct the costs, then to deduct the interest that has been opened and finally to deduct the principal sum and the accrued interest. The service provider may, without being in default, refuse an offer to pay if the Client designates a different order for the allocation of the payment. The service provider may refuse full repayment of the principal sum if the outstanding and accrued interest and collection costs are not also paid.
- The Client is never entitled to set off the amount owed by him to the Service Provider. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke section 6.5.3 (articles 231 to 247 book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
- If the Client is in default or in default in the (timely) fulfilment of its obligations, then all reasonable costs for obtaining payment out of court will be borne by the Client. The extrajudicial costs are calculated based on what is customary in Dutch debt collection practice. However, if the Service Provider has incurred higher collection costs that were reasonably necessary, the costs actually incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.
Article 7. Retention of title
- The service provider’s performance under the agreement remains the property of the Service Provider until the Client has properly fulfilled all obligations under the agreement(s) concluded with the Service Provider.
- The service provider provided, which pursuant to paragraph 1. is subject to the retention of title, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or otherwise entaliade for the retention of title.
- The Client must always do everything that can reasonably be expected of him to safeguard the property rights of the Service Provider. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereto, the Client is obliged to immediately inform the Service Provider thereof. Furthermore, the Client undertakes to insure the goods delivered under retention of title and to keep it insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available to the Service Provider on first request. In the event of any payment of the insurance, the Service Provider is entitled to these tokens. As much as necessary, the Client undertakes in advance towards the Service Provider to cooperate with everything that may be necessary or desirable in that context.
- In the event that the Service Provider wishes to exercise its property rights referred to in this article, the Client gives unconditional and non-revocable permission in advance to the Service Provider and third parties designated by the Service Provider to enter all those places where the services provider’s properties are located and to take them back.
Article 8. Guarantees, research and complaints, limitation period
- The goods to be delivered by the Service Provider comply with the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended for normal use the Netherlands. The warranty mentioned in this article applies to goods intended for use within the Netherlands. When used outside the Netherlands, the Client must verify whether its use is suitable for use there and meet the conditions that are set there. In that case, the service provider may impose other warranty and other conditions with regard to the goods to be delivered or work to be carried out.
- The guarantee referred to in paragraph 1 of this article applies for a period of ……… after delivery, unless the nature of the delivered goods results otherwise or the parties have agreed otherwise. If the guarantee provided by the Service Provider concerns a goods produced by a third party, the guarantee is limited to that provided by the producer of the goods for it, unless otherwise stated.
- Any form of warranty will lapse if a defect has arisen as a result of or results from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Client and / or by third parties when, without the written permission of the Service Provider,the Client or third parties have made changes to the goods or have tried to make changes to the goods, other items have been confirmed to it that should not be confirmed or if they have been processed or processed in a manner other than the prescribed one. The Client is also not entitled to a warranty if the defect has arisen due to or is the result of circumstances over which the Service Provider cannot influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) etc.
- The Client is obliged to examine the delivered goods or have them examined immediately at the moment that the goods are made available to him or the relevant work has been carried out. In doing so, the Client must investigate whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements agreed by the parties in this regard. Any visible defects must be reported in writing to the Service Provider within seven days of delivery. Any non-visible defects must be reported in writing to the Service Provider immediately, but in any case no later than fourteen days after discovery thereof. The notification must contain as detailed a description as possible of the defect, so that the Service Provider is able to respond adequately. The Client must give the Service Provider the opportunity to investigate a complaint.
- If the Client complains in a timely manner, this does not suspend his payment obligation. In that case, the Client will also continue to be obliged to purchase and pay for the goods otherwise ordered and what he has ordered service provider to do.
- If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.
- If it is established that a product is defective and has been complained about in a timely manner, the Service Provider will replace the defective item within a reasonable period of time after receipt thereof or, if return is not reasonably possible, written notification regarding the defect by the Client, at the choice of service provider, replace or arrange for its repair or pay replacement compensation to the Client. In the event of replacement, the Client is obliged to return the replaced item to the Service Provider and to provide the property thereof to the Service Provider, unless the Service Provider indicates otherwise.
- If it is established that a complaint is unfounded, then the costs arising, including the research costs, on the part of the Service Provider as a result, are entirely at the expense of the Client.
- After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and driving costs, will be charged to the Client.
- By way of derogation from the statutory limitation periods, the limitation period for all claims and defences against the Service Provider and the third parties involved by the Service Provider in the execution of an agreement is one year.
Article 9. Liability
- If the Service Provider should be liable, this liability is limited to what is regulated in this provision.
- Service Provider is not liable for damage of any kind caused by the Service Provider based on incorrect and / or incomplete data provided by or on behalf of the Client.
- If the Service Provider should be liable for any damage, the liability of the Service Provider is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
- The liability of the Service Provider is in any case always limited to the amount of the payment of its insurer, if applicable.
- Service provider is only liable for direct damage.
- Direct damage is only understood to mean the reasonable costs for determining 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 defective performance of the Service Provider comply with the agreement, insofar as these can be attributed to the Service Provider and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions. Service provider is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.
- The limitations of liability set out in this article do not apply if the damage is due to intent or gross negligence on the part of the Service Provider or its managerial subordinates.
Article 10. Indemnification
- The Client indemnifies the Service Provider against any claims of third parties, who suffer damage in connection with the execution of the agreement and whose cause is attributable to other than the Service Provider. If, for this reason, the Service Provider should be held liable by third parties, the Client is obliged to assist the Service Provider both outside and in court and to immediately do everything that may be expected of him in that case. If the Client fails to take adequate measures, the Service Provider is entitled to do so itself, without notice ofdefault. All costs and damages on the part of the Service Provider and third parties arising as a result are entirely at the expense and risk of the Client.
Article 11. Intellectual property
- The Service Provider reserves the rights and powers vested in it under the Copyright Act and other intellectual laws and regulations. The service provider has the right to use the knowledge gained by the execution of an agreement on its side for other purposes, insofar as no strictly confidential information of the Client is brought to the knowledge of third parties.
Article 12. Applicable law and disputes
- All legal relationships to which the Service Provider is a party are exclusively governed by Dutch law, even if an obligation is executed in whole or in part abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
- The court in the place of business of the Service Provider has exclusive jurisdiction to hear disputes, unless the law requires otherwise. Nevertheless, the Service Provider has the right to refer the dispute to the court competent under the law.
- The parties will only appeal to the court after they have made every effort to settle a dispute by mutual agreement.
Article 13. Location and change conditions
- These terms and conditions have been filed with the Chamber of Commerce.
- The most recently filed version or the version as applicable at the time of the establishment of the legal relationship with the Service Provider always applies.
- The filed Dutch text of the general terms and conditions is always decisive for the explanation thereof.