Article 1 General information
These terms and conditions apply to every offer, quotation and agreement between Drawing To Health, hereinafter referred to as: “Company”, and a Client to which the Company has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing.
- The present conditions also apply to agreements with the Company, for the implementation of which the Company must involve third parties.
- These general terms and conditions are also written for the employees of the Company and his management.
- The applicability of any purchase or other conditions of the Client is expressly rejected.
- If one or more provisions in these general terms and conditions are at any time wholly or partially invalid or should be declared void, the other provisions in these general terms and conditions will remain fully applicable. The Company and the Client will then enter into consultation in order to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and purport of the original provisions.
- If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, the explanation must take place ‘in the spirit’ of these provisions.
- If a situation occurs between parties that is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
- If the Company does not always demand strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that the Company would lose the right to demand strict compliance with the provisions of these conditions in other cases.
Article 2 Offers and Quotations
- All quotations and offers from the Company are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period has been set, no rights whatsoever can be derived from the quotation or offer if the product to which the quotation or the offer relates is no longer available in the meantime.
- Company cannot be held to his quotes or offers if the Client can reasonably understand that the quotes 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 in the context of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.
- If the acceptance (whether or not on minor points) deviates from the offer included in the offer or the offer, then the Company is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Company indicates otherwise.
- A compound quotation does not oblige the Company to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3 Contract duration; execution times, risk transfer, execution and modification agreement; price increase
- The agreement between the Company and the Client is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
- If a period has been agreed or specified for the execution of certain activities or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Client must therefore give the Company written notice of default. The Company must be offered a reasonable period of time to still implement the agreement.
- Company will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the current state of science.
- Company has the right to have certain work done by third parties. The applicability of Article 7: 404, 7: 407 paragraph 2 and 7: 409 of the Dutch Civil Code is expressly excluded.
- If work is performed by the Company or third parties engaged by the Company in the context of the assignment at the location of the Client or at a location designated by the Client, the Client will provide the facilities reasonably required by those employees free of charge.
- Delivery takes place from the Company’s company. The Client is obliged to take delivery of the goods at the moment that they are made available to him. If the Client refuses to take delivery or fails to provide information or instructions that are necessary for the delivery, then the Company is entitled to store the goods at the Client’s expense and risk. The risk of loss, damage or depreciation is transferred to the Client at the time when items are available to the Client.
- Company is entitled to execute the agreement in different phases and to invoice the executed part separately.
- If the agreement is implemented in phases, the Company can suspend the implementation of those parts that belong to a following phase until the Client has approved the results of the preceding phase in writing.
- The Client will ensure that all data, of which the Company indicates that they are necessary or which the Client should reasonably understand to be necessary for the execution of the agreement, is provided to the Company in a timely manner. If the data required for the implementation of the agreement are not provided to the Company in time, the Company has the right to suspend the performance of the agreement and / or to charge the Client for the additional costs resulting from the delay in accordance with the then usual rates. bring. The execution period does not commence until the Client has made the data available to the Company. The Company is not liable for damage of whatever nature caused by the fact that the Company relied on incorrect and / or incomplete information provided by the Client.
- If during the execution of the agreement it appears that for a proper implementation thereof it is necessary to change or supplement it, then the parties will proceed to adjust the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Client, of the competent authorities, etc., is changed and the agreement is thereby amended 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 decreased. The Company will quote as much as possible in advance. Furthermore, the originally specified term of implementation can be changed by changing the agreement. The Client accepts the possibility of amending the agreement, including the change in price and execution time.
- If the agreement is amended, including an addition, the Company is entitled to implement it only after approval has been given by the person authorized within the Company and the Client has agreed to the price and other conditions specified for the implementation. , including the then to be determined time at which it will be implemented. Failure or immediate implementation of the amended agreement does not constitute a breach of contract on the part of the Company and does not constitute grounds for the Client to terminate or cancel the agreement.
- Without failing to do so, the Company may refuse a request to amend the agreement if this could have a qualitative and / or quantitative consequence, for example for the work to be performed or the goods to be delivered in that context.
- If the Client should be in default in the proper performance of that which he is obliged to the Company, the Client is liable for all damage caused directly or indirectly by the Company as a result of this.
- If the Company agrees a fixed fee or price with the Client, then the Company is nevertheless entitled to increase this fee or price at any time without the Client being entitled in that case to terminate the agreement for that reason, if the increase in the price arises 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 a change to the agreement, amounts to more than 10% and takes place within three months after the conclusion of the agreement, then only the Client is entitled to appeal to Title 5, Section 3 of Book 6 of the Dutch Civil Code. entitled to terminate the agreement by a written statement, unless Company is then still willing to execute the agreement on the basis of the originally agreed upon;
- if the price increase results from a power or an obligation resting on the User under the law;
- if it is stipulated that the delivery will take place longer than three months after the conclusion of the agreement;
- or, upon delivery of an item, if it is stipulated that the delivery will take place longer than three months after the purchase.
Article 4 Suspension, dissolution and early termination of the agreement
- Company is entitled to suspend compliance with the obligations or to terminate the agreement if the Client does not, not fully or not timely fulfill the obligations arising from the agreement, after the conclusion of the agreement circumstances give the Company good reason to fear that the Client will not fulfill its obligations if, at the conclusion of the agreement, the Client has been requested to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient or if due to the delay on the side the Client can no longer be expected to comply with the agreement under the originally agreed conditions.
- Furthermore, the Company is entitled to terminate the agreement if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or if circumstances otherwise arise that are such that unchanged maintenance of the agreement cannot reasonably be assumed by the Company. be required.
- If the agreement is dissolved, the Company’s claims against the Client are immediately due and payable. If the Company suspends compliance with the obligations, he retains his rights under the law and the agreement.
- If the Company proceeds to suspension or dissolution, he is in no way obliged to compensate damage and costs arising in any way.
- If the termination is attributable to the Client, the Company is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
- If the Client fails to fulfill his obligations arising from the agreement and this non-compliance justifies termination, then the Company is entitled to terminate the agreement immediately and with immediate effect without any obligation on his part to pay any compensation or compensation, while the Client, due to non-performance, compensation or compensation is required.
- If the agreement is terminated prematurely by the Company, the Company will arrange for the transfer of work still to be performed to third parties in consultation with the Client. This unless the cancellation is attributable to the Client. If the transfer of the activities entails additional costs for the Company, these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless the Company indicates otherwise.
- In the event of liquidation, (application for) suspension of payment or bankruptcy, of seizure – if and to the extent that the seizure has not been lifted within three months – at the expense of the Client, of debt rescheduling or any other circumstance whereby the Client is not can freely dispose of his assets for a longer period of time, the Company is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or compensation. The Company’s claims against the Client are immediately due and payable in that case.
- If the Client cancels an order in whole or in part, then the work that has been carried out and the items ordered or prepared for it, plus any delivery and delivery costs thereof and the working time reserved for the execution of the agreement, be fully charged to the Client.
Article 5 Force majeure
- Company is not obliged to fulfill 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 neither under the law, a legal act or generally accepted views on his account. coming.
- Force majeure in these general terms and conditions is understood to mean, in addition to what is understood in this regard by law and case law, all of external causes, foreseen or unforeseen, over which the Company cannot influence, but as a result of which the Company is unable to fulfill his obligations to come. Strikes in the business of the Company or third parties included. The Company also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Company should have fulfilled his obligation.
- Company can 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 terminate the agreement, without obligation to compensate damage to the other party.
- Insofar as the Company has at the time of the occurrence of force majeure partly fulfilled his obligations under the agreement or will be able to fulfill them, and the part fulfilled or to be fulfilled deserves independent value, the Company is entitled to fulfill the already fulfilled or to fulfill come to invoice 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 after the invoice date, in a manner to be specified by the Company in the currency in which the invoice is made, unless otherwise indicated by the Company in writing. Company is entitled to invoice periodically.
- If the Client fails to pay an invoice on time, the Client is legally in default. The Client will then owe an interest of 1% per month, unless the legal interest is higher, in which case the legal interest is due. The interest on the claimable amount will be calculated from the moment that the Client is in default until the moment of payment of the full amount due.
- The Company is entitled to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. The Company can, without being in default as a result, refuse an offer for payment if the Client designates a different order for the allocation of the payment. The Company can refuse full repayment of the principal if the vacant and accrued interest and collection costs are not also paid.
- The Client is never entitled to set off what it owes to the Company. Objections to the amount of an invoice do not suspend the payment obligation. The Client who does not appeal to section 6.5.3 (articles 231 up to and including 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 omission in the (timely) fulfillment of its obligations, then all reasonable costs for obtaining satisfaction out of court will be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to the Voorwerk II Report. However, if the Company has incurred higher collection costs that were reasonably necessary, the costs actually incurred will be eligible for reimbursement. Any legal and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs.
article 7 Retention of title
- The items supplied by the Company under the agreement remain the property of the Company until the Client has properly fulfilled all obligations arising from the agreement (s) concluded with the Company.
- The items supplied by the Company that fall under the retention of title pursuant to paragraph 1. may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or encumber the property subject to retention of title in any other way.
- The Client must always do everything that can reasonably be expected of it in order to safeguard the ownership rights of the Company. If third parties seize the goods delivered under retention of title or wish to establish or enforce rights thereon, the Client is obliged to immediately inform the Company thereof. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to provide the Company with the policy of this insurance for inspection upon first request. In the event of payment of the insurance, the Company is entitled to these tokens. For as much as necessary, the Client undertakes vis-à-vis the Company in advance to lend its cooperation to everything that may prove to be necessary or desirable in that context.
- In the event that the Company wishes to exercise his ownership rights referred to in this article, the Client gives the Company unconditional and irrevocable permission in advance to enter all those places where the properties of the Company are and return them to take.
Article 8 Guarantees, research and complaints, limitation period
- The items to be delivered by the User meet the usual requirements and standards that can reasonably be imposed on them at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee referred to in this article applies to items that are intended for use within the Netherlands. For use outside the Netherlands, the Client must verify for itself whether the use thereof is suitable for use there and meet the conditions set for this. In that case, the User may set different warranty and other conditions with regard to the items to be delivered or work to be performed.
- The guarantee referred to in paragraph 1 of this article applies for a period of 30 days after delivery, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the User relates to an item produced by a third party, then the guarantee is limited to that provided by the producer of the item for it, unless stated otherwise.
- Any form of guarantee will lapse if a defect has arisen as a result of or results from improper or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Client and / or third parties when, without written permission from The User, the Client or third parties have made changes to the item or have attempted to make changes to it, other items that have not been confirmed or have been modified or modified in a manner other than the prescribed manner. The Client is also not entitled to a guarantee if the defect has arisen due to or is the result of circumstances over which the User cannot influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), et cetera.
- The Client is obliged to examine or have investigated the delivered goods immediately as soon as the goods are made available to him or the relevant work has been carried out. In addition, the Client should investigate whether the quality and / or quantity of the delivery corresponds to what has been agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to the User in writing within seven days of delivery. Any non-visible defects must be reported to the User in writing immediately, but in any case no later than fourteen days after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that the User is able to respond adequately. The Client must give the User the opportunity to investigate a complaint or have it investigated.
- If the Client complains in time, this does not suspend its payment obligation. In that case, the Client also remains obliged to purchase and pay for the otherwise ordered items and what they have instructed the User to do.
- If a defect is reported later, the Client no longer has the right to repair, replacement or compensation.
- If it is established that an item is defective and a timely complaint has been made, the User will within a reasonable time after receipt thereof or, if return is not reasonably possible, written notice of the defect by the Client, at its option. of the User, replace or arrange for its repair or replacement fee to the Client. In the event of replacement, the Client is obliged to return the replaced item to the User and to transfer ownership to the User, unless the User indicates otherwise.
- If it is established that a complaint is unfounded, then the costs incurred as a result, including the research costs incurred by the User as a result, will be borne in full by the Client.
- After the guarantee period has expired, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Client.
- Contrary to the legal limitation periods, the limitation period of all claims and defenses against the User and the third parties involved by the User in the execution of an agreement is one year.
Article 9 Liability
- If the User should be liable, then this liability is limited to the provisions of this provision.
- User is not liable for damage of any nature whatsoever caused by the fact that User relied on incorrect and / or incomplete information provided by or on behalf of the Client.
- If the User should be liable for any damage, then the liability of the User 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 User is in any case always limited to the amount paid out by his insurer where appropriate.
- User is only liable for direct damage.
- Direct damage is exclusively understood to mean the reasonable costs for determining the cause and the extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to compensate the user for the poor performance of the user. to have the agreement answered, insofar as these can be attributed to the User and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. The user is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption.
- The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the User or his managerial subordinates.
Article 10 Disclaimer
The Client indemnifies the User against any claims from third parties who suffer damage in connection with the implementation of the agreement and whose cause is attributable to others than the User. If the User should be addressed by third parties on that basis, the Client is obliged to assist the User both externally and legally and to immediately do everything that may be expected of him in that case. If the Client fails to take adequate measures, then the User is entitled to do so without notice of default. All costs and damage on the part of the User and third parties that arise as a result are integrally for the account and risk of the Client.
Article 11 Intellectual Property
The user reserves the rights and powers that belong to him under the Copyright Act and other intellectual laws and regulations. The user has the right to use the knowledge he has gained through the implementation of an agreement for other purposes as well, insofar as no strictly confidential information from the Client is disclosed to third parties.
Article 12 Applicable law and disputes
- All legal relationships to which the User is a party are exclusively governed by Dutch law, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
- The judge in the place of business of the User is exclusively authorized to take cognizance of disputes, unless the law prescribes otherwise. Nevertheless, the User has the right to submit the dispute to the competent court according to the law.
- Parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
article 13 Location and change of conditions
- These terms and conditions have been filed with the Chamber of Commerce in Enschede
- The most recently filed version applies or the version that applied at the time the legal relationship with the User was established.
- The Dutch text of the general terms and conditions always determines the explanation thereof.