ARTICLE 1. | DEFINITIONS
GENERAL TERMS AND CONDITIONS FINE STEEL TOOLING
In these general terms and conditions, the following terms, always capitalised, are used in the following sense.
1. Fine Steel Tooling: the user of these general terms and conditions, located at De Sonman 35, 5066 GJ in Moergestel, registered in the Trade Register under Chamber of Commerce number 89670264.
2. Client: any natural or legal person with whom Fine Steel Tooling has concluded or intends to conclude an Agreement.
3. Consumer: a Client, natural person, not acting in the exercise of a profession or business.
4. Parties: Fine Steel Tooling and the Client jointly.
5. Agreement: any agreement between the Parties under which Fine Steel Tooling has undertaken towards the Client to perform Work and/or supply Materials.
6. Work: the work to which Fine Steel Tooling has committed itself within the framework of the Agreement, which may include, but is not limited to and in the broadest sense of the word, metalworking concerning repair or the manufacture of new parts, engineering and consultancy.
7. Materials: the items to be delivered by Fine Steel Tooling to the Client within the framework of the Agreement, whether or not they are delivered in connection with the performance of Work. Materials may include, for example, appliances and parts thereof.
8. In writing: communication in writing, communication by e-mail or any other means of communication that can be equated with this in view of the state of the art and common practice.
ARTICLE 2. | GENERAL PROVISIONS
1. These general terms and conditions apply to every Fine Steel Tooling offer and every Agreement.
2. These general terms and conditions are also stipulated on behalf of any third parties engaged by Fine Steel Tooling in the execution of the Agreement. Consequently, insofar as the right to fulfil the stipulations cannot, by their nature or purport, be exclusively reserved to Fine Steel Tooling, these third parties may invoke the provisions of these general terms and conditions vis-à-vis the Client and the provisions of these general terms and conditions also apply with respect to the aforementioned third parties, all as if they were parties to the Agreement themselves instead of Fine Steel Tooling.
3. The applicability of any general terms and conditions of the Client is expressly rejected.
4. The provisions of these general terms and conditions can only be deviated from explicitly and In Writing, such as by means of an offer from Fine Steel Tooling or a simple e-mail exchange. If and insofar as that which the Parties have expressly agreed in Writing deviates from the provisions of these general terms and conditions, that which the Parties have expressly agreed in Writing shall apply.
5. Destruction or nullity of one or more of the provisions of these general terms and conditions or the Agreement as such shall not affect the validity of the remaining clauses. In such a case, the Parties are obliged to enter into mutual consultation in order to reach a replacement arrangement in respect of the affected clause. In doing so, the purpose and purport of the original stipulation will be observed as much as possible.
ARTICLE 3. | OFFER AND FORMATION OF AGREEMENTS
1. Any offer by Fine Steel Tooling is free of obligation, even if it states a deadline for acceptance. Any offer by Fine Steel Tooling can still be revoked by Fine Steel Tooling until immediately, at least as soon as possible after acceptance by the Client.
2. The Customer cannot derive any rights from an offer by Fine Steel Tooling that contains an obvious mistake or error.
3. Without prejudice to the provisions of paragraph 1, every Agreement comes about through offer and acceptance. If the Customer's acceptance deviates from Fine Steel Tooling's offer, the Agreement will not be established in accordance with this deviating acceptance, unless Fine Steel Tooling indicates otherwise.
4. If Fine Steel Tooling provides the Client, following an orally concluded Agreement, with a Written confirmation thereof, this confirmation is deemed to accurately and completely reflect the Agreement, unless the
Page 1 from 7 Customer has complained to Fine Steel Tooling in writing in this regard within two working days of receiving the confirmation by e-mail or otherwise.
5. An offer made by Fine Steel Tooling does not automatically apply to any subsequent agreements between the Parties. However, insofar as no changes have been made therein, these general terms and conditions do also apply to any subsequent agreements without Fine Steel Tooling being obliged to make these general terms and conditions available to the Client each time.
6. If the Client concludes the Agreement in the name of another natural or legal person, he declares by entering into the Agreement that he is authorised to do so. In addition to this (legal) person, the Principal is jointly and severally liable for the fulfilment of all obligations arising from that Agreement.
ARTICLE 4. | CANCELLATION OF THE AGREEMENT Every Agreement is binding upon its conclusion. In case of cancellation of the Agreement by the Client, Fine Steel Tooling is entitled to claim compensation for the damage caused to Fine Steel Tooling as a result. This compensation includes the amount Fine Steel Tooling would also have been entitled to if the Agreement had been fulfilled in full, minus any demonstrable savings for Fine Steel Tooling resulting from the cancellation.
ARTICLE 5. | OBLIGATIONS OF THE CLIENT AND PERFORMANCE OF WORK
1. The Client shall provide Fine Steel Tooling with all information reasonably relevant to the design and execution of the Agreement, including any drawings and job descriptions, in a timely manner, completely and in any manner designated by Fine Steel Tooling for that purpose.
2. Furthermore, the Client must always provide Fine Steel Tooling with all cooperation required for the execution of the Agreement. The Client shall take all reasonable measures to optimise the performance of the Agreement.
3. Work on Customer's items will be carried out during normal working hours and on Fine Steel Tooling's premises.
4. If the Client fails to collect the Client's item(s) to which the Work relates within three working days of Fine Steel Tooling notifying the Client that the Work has been completed, Fine Steel Tooling will be entitled to charge the Client a fine of €250 per day with a maximum of €25,000, without prejudice to Fine Steel Tooling's right to claim full damages.
ARTICLE 6. | DEADLINES
1. Any terms of execution and (completion) delivery to which Fine Steel Tooling has committed itself vis-à-vis the Client are only indicative, non-fatal terms. Fine Steel Tooling's default does not take effect until after the Client has given Fine Steel Tooling Written notice of default, in which notice of default a reasonable term for fulfilment is stated, and Fine Steel Tooling is still in default of fulfilment after the expiry of the latter term.
2. Default by Fine Steel Tooling entitles the Client to dissolve that part of the Agreement to which the default relates, but never to additional or replacement damages.
ARTICLE 7. | COST-INCREASING CIRCUMSTANCES
1. The provisions of this article shall apply if and insofar as a fixed price has been agreed. If the price has been offered on the basis of subsequent calculation, as in the case of an hourly rate, the actual hours worked and costs incurred shall be charged to the Client.
2. Cost-increasing circumstances are circumstances:
- which are of such a nature that the likelihood of their occurrence should not have been taken into account when the Agreement was concluded,
- which cannot be attributed to Fine Steel Tooling and - which increase the cost of the work.
3. Cost-increasing circumstances entitle Fine Steel Tooling to compensation for the resulting consequences.
4. If Fine Steel Tooling is of the opinion that cost-increasing circumstances have occurred, it should inform the Client as soon as possible. The Parties will then promptly consult on the question of whether cost-increasing circumstances have occurred and, if so, to what extent the cost increase will be compensated by the Client in all reasonableness and fairness.
Page 2 from 7 5. Instead of agreeing to compensation, the Principal is entitled to limit, simplify or terminate the work. The amount payable by the Client in this case will be determined according to standards of reasonableness and fairness.
ARTICLE 8. | MOREWORK
1. The provisions of this article shall apply if and insofar as a fixed price has been agreed. If the price has been offered on the basis of subsequent calculation, as in the case of an hourly rate, the actual hours worked and costs incurred shall be charged to the Client.
2. In case of changes in the Agreement or in the conditions of execution desired by the Client, Fine Steel Tooling can only claim an increase in the price if it has informed the Client in a timely manner of the necessity of a resulting price increase, unless the Client should have understood that necessity by itself.
3. Fine Steel Tooling does not have to accept a request from the Client for changes to the Agreement or to the terms of execution if and insofar as this cannot reasonably be required of it.
ARTICLE 9. | INVESTIGATIONS AND COMPLAINTS
1. At the moment of delivery of the Materials or receipt of goods in respect of which Work has been performed, or at least immediately thereafter, the Client should examine whether the nature and the quantity thereof comply with the Agreement and are free of externally visible or otherwise recognisable damage or defects. Complaints in this regard should be communicated immediately to Fine Steel Tooling. In case the Materials or items are collected from the Client at Fine Steel Tooling's location, it is assumed that the nature and quantity thereof comply with the Agreement and that they are free from externally visible or otherwise cognisable damage and defects if the Materials or items have been taken away by or on behalf of the Client without any Written reservation.
2. Complaints with regard to defects that were not reasonably visible or otherwise unknowable at the time of the (return) delivery must be submitted in Writing to Fine Steel Tooling within seven days after the Customer became aware of the existence of the defect, or at least could reasonably have become aware of it.
3. Contrary to the provisions of the previous paragraphs of this article, a Consumer can no longer claim that Materials delivered in the context of a consumer purchase do not comply with the Agreement if no complaint has been made to Fine Steel Tooling in this regard within two months after the Consumer discovered the defect.
Invoices
4. Complaints about the amount of invoice amounts must be submitted to Fine Steel Tooling In Writing within the payment term. General
5. If the Client fails to complain in a timely manner and in accordance with the provisions of the previous paragraphs, Fine Steel Tooling shall not derive any obligation from such a complaint by the Client.
6. Even if the Customer complains in time, his obligation to pay Fine Steel Tooling in time shall continue to exist, except i n s o f a r as the law imperatively prevents this for the benefit of the Consumer.
ARTICLE 10. | WARRANTY AND CONFORMITY
1. Fine Steel Tooling guarantees that the (delivered) goods are free of defects for up to six months afterwards, unless another term has been expressly agreed in Writing.
2. If, after delivery or completion and within the applicable warranty period, there appears to be an attributable shortcoming by Fine Steel Tooling in the fulfilment of the Agreement, Fine Steel Tooling will redo the Work free of charge or take care of repair or replacement of the Materials free of charge insofar as this is necessary to repair the shortcoming. In this case, Fine Steel Tooling will determine the manner and time of execution . If the agreed performance (partly) consisted of processing materials supplied by the Customer, the Customer must supply new materials at his own expense and risk. If redoing the Work or repairing or replacing the Materials is not possible or cannot reasonably be required from Fine Steel Tooling, Fine Steel Tooling will credit the Client for a proportional part of the agreed price. An attributable shortcoming as referredtoin the first sentence should be understood to mean a shortcoming that a good and carefully acting professional can and should avoid, all this taking into account normal attentiveness and the professional knowledge and means required for the execution of the Agreement.
Page 3 from 7 3. Any costs in connection with an appeal to the provisions of the previous paragraph shall be borne by the Customer; Only the costs of replacement Material and labour under paragraph 2 shall be free of charge.
4. Fine Steel Tooling is only obliged to fulfil its warranty obligations if the Client has fulfilled all its obligations under the Agreement.
5. Warranty is excluded with respect to defects resulting from normal wear and tear, improper use, non- or incorrectly performed maintenance, installation, assembly, modification or repair by the Client or by third parties, defects to or unsuitability of items originating from or prescribed by the Client and defects to or unsuitability of materials or tools used by the Client. Furthermore, warranty is excluded in respect of delivered Materials that were not new at the time of delivery, the repair of items of the Client and Materials for which a manufacturer's warranty has been issued.
6. The provisions of the previous paragraphs of this article shall apply mutatis mutandis in the event of claims for breach of contract or any other basis whatsoever.
7. The provisions in the previous paragraphs of this article apply on the understanding that a guarantee provided by Fine Steel Tooling, manufacturer or importer does not detract from the mandatory statutory rights and claims that Consumers can assert against Fine Steel Tooling in the context of a consumer purchase (conformity). In case the Consumer makes a valid claim of nonconformity, the Consumer claims repair or replacement or addition of what is missing. No costs can be charged to the Consumer for exercising these rights. Fine Steel Tooling will cooperate within a reasonable time to repair, replace or supplement what is missing.
8. For a valid claim of warranty or non-conformity, the Customer must complain to Fine Steel Tooling in this regard in a timely manner and in accordance with the provisions of article 9.
ARTICLE 11. | FORCE MAJEURE
1. Fine Steel Tooling is not obliged to fulfil any obligation from the Agreement if and for as long as it is hindered to do so by a circumstance that cannot be attributed to it by virtue of the law, a legal act or generally accepted practice (force majeure). In addition to what is understood in law and jurisprudence in this respect, force majeure is understood to mean all external causes beyond Fine Steel Tooling's control which make the (further) execution of the Agreement impossible or seriously hamper it, including, among other things, staff disability, epidemics, pandemics, fire, government measures, transport restrictions, war or threat of war, violent or armed actions and breakdowns of installations or machinery.
2. If and to the extent that the force majeure situation makes the performance of the Agreement permanently impossible, the Parties shall be entitled to dissolve the Agreement with immediate effect.
3. If Fine Steel Tooling has already partially fulfilled its obligations when the force majeure situation arises, or can only partially still fulfil its obligations, Fine Steel Tooling is entitled to separately invoice the part already fulfilled, or part of the agreement that can still be fulfilled, as if it were an independent agreement.
4. Without prejudice to the provisions of the previous paragraph, damage caused by force majeure shall never be eligible for compensation.
ARTICLE 12. | SUSPENSION AND TERMINATION
1. Fine Steel Tooling is authorised, if the circumstances of the case reasonably justify this, to suspend the execution of the Agreement or to dissolve the Agreement in whole or in part with immediate effect, if and insofar as the Client fails to fulfil his obligations under the Agreement (including the provisions in these general terms and conditions), or fails to do so in a timely or complete manner, or if, after the conclusion of the Agreement, Fine Steel Tooling learns of circumstances which give Fine Steel Tooling good reason to fear that the Client will not fulfil his obligations. If the fulfilment of the Client's obligations with regard to which he fails or threatens to fail is not permanently impossible, the authority to rescind the agreement only arises after the Client has been placed in default In Writing by Fine Steel Tooling, in which default notice a reasonable period is stated within which the Client can (still) fulfil his obligations and fulfilment has still not taken place after the expiry of the latter period.
2. If the Client is in a state of bankruptcy, has applied for (provisional) suspension of payment, any attachment has been levied on his goods or in cases where the Client cannot freely dispose of his assets in any other way, Fine Steel Tooling is entitled to dissolve all or part of the Agreement with immediate effect, unless the Client has already fulfilled all his (future) payment obligations under the Agreement in full.
Page 4 from 7 3. Furthermore, Fine Steel Tooling is entitled to dissolve all or part of the Agreement if circumstances arise which are of such a nature that fulfilment of the Agreement is impossible or cannot reasonably be required of it without modification.
4. The Customer shall never claim any form of compensation in connection with the right of suspension and/or termination exercised by Fine Steel Tooling pursuant to this article.
5. If the ground that led to suspension or dissolution of the Agreement can be attributed to the Client, the Client will be obliged to compensate Fine Steel Tooling for the damage suffered as a result.
6. If Fine Steel Tooling dissolves the Agreement pursuant to this article, any outstanding claims against the Client shall become immediately due and payable.
ARTICLE 13. | PRICES, COSTS AND PAYMENTS
1. The parties expressly agree on the price at which the Agreement will be executed by Fine Steel Tooling and any additional costs that will be passed on to the Client, failing which the Agreement will be executed at Fine Steel Tooling's then customary rates. The foregoing applies on the understanding that before an Agreement is concluded with a Consumer, the price is expressly agreed upon, including VAT and any additional costs.
2. If and insofar as no express and Written agreements have been made in this regard, Fine Steel Tooling is entitled to claim full or partial prepayment from the Customer, it being understood that Fine Steel Tooling will not oblige a Consumer, in the context of a consumer purchase, to prepay more than 50% of the purchase price of the Materials. However, if the Consumer has opted for prepayment of more than half of the purchase price, he does remain bound by this choice. Payment at the time of delivery is not considered prepayment.
3. All agreed prices are based on the facts and circumstances known to Fine Steel Tooling at the time Fine Steel Tooling offered these prices to the Client. Should price increases of cost price determining factors occur between the moment of the conclusion of the Agreement and the execution and/or delivery, such as an increase in purchase prices and/or wages, Fine Steel Tooling is entitled to pass these price increases on to the C l i e n t , on the understanding that for this reason a Consumer is entitled to dissolve the Agreement if the price increase takes place within three months after the conclusion of the Agreement and Fine Steel Tooling still explicitly indicates that it does not wish to fulfil the Agreement under the originally agreed price conditions. The Consumer's aforementioned right to cancel the Agreement does not apply if the price increase is the result of increases in VAT or other government levies.
4. Payments should be made by bank transfer, within the term specified by Fine Steel Tooling. Fine Steel Tooling uses a standard payment term of 14 days after invoice date, but may deviate from this in individual cases.
5. Payment must be made without any appeal to suspension or settlement, insofar as the law does not imperatively prevent this for the benefit of the Consumer.
6. Fine Steel Tooling is entitled to make invoices due to the Customer available to him exclusively by e-mail.
7. If the Client liquidates or transfers its company to a third party, is in a state of bankruptcy, has applied for (provisional) suspension of payments, any attachment has been levied on its goods, as well as in case in which the Client cannot freely dispose of its assets in any other way, the claims against the Client shall be immediately due and payable.
8. If timely payment is not made, the Customer's default shall commence by operation of law. From the day that the Customer's default commences, the Customer shall owe interest on the outstanding amount of 2% per month, whereby part of a month shall be regarded as a full month. Notwithstanding the previous sentence, instead o f the contractual interest rate referred to there, the statutory interest rate applicable at the time of the default of payment shall apply if the Client is a Consumer.
9. All reasonable costs, such as judicial, extrajudicial and execution costs, incurred to obtain the amounts owed by the Client, shall be borne by the Client.
ARTICLE 14. | LIABILITY AND INDEMNIFICATION
1. The Client shall bear the damage caused by inaccuracies or incompleteness in the data provided by him, defects of or unsuitability of items belonging to the Client on which the Work is performed or to which the Work relates, unless Fine Steel Tooling should have k n o w n these defects or unsuitability, any
Page 5 from 7 other failure to fulfil the Client's obligations under the law or the Agreement, as well as any other circumstance that cannot be attributed to Fine Steel Tooling. Damage resulting f r o m a circumstance as referred to above shall not entitle the Client to any damages or any other compensation towards Fine Steel Tooling.
2. Fine Steel Tooling shall never be liable for damages resulting from a circumstance as referred to in article 10.5.
3. Fine Steel Tooling shall not be liable for indirect damage, including losses suffered, loss of profit, damage due to business stagnation, loss of production, fines and transport, travel and accommodation costs.
4. Fine Steel Tooling is not liable for supervision damage. Supervision damage is understood to mean, among other things, damage caused by or during the execution of the Work to objects on which work is being carried out or to objects located in the vicinity of the place where work is being carried out.
5. Fine Steel Tooling is not liable for damages caused by intent or deliberate recklessness of auxiliary persons or non-managerial subordinates of Fine Steel Tooling.
6. Fine Steel Tooling is not obliged to compensate any damage to items supplied by or on behalf of the Customer as a result of improper processing.
7. Should Fine Steel Tooling nevertheless be liable for any damage despite the provisions of these general terms and conditions, Fine Steel Tooling will be entitled to repair such damage at all times. The Client should give Fine Steel Tooling t h e opportunity to do so, failing which any liability of Fine Steel Tooling in this regard will lapse.
8. Fine Steel Tooling's liability is limited to, at most, repair of the Work, or repair or replacement of the Materials to which Fine Steel Tooling's liability relates. If repair or replacement is not possible, Fine Steel Tooling's liability is limited to the amount that is actually paid out in the case in question, based on Fine Steel Tooling's liability insurance taken out by Fine Steel Tooling, increased by Fine Steel Tooling's excess, if any, that applies under that insurance. If no payment is made by the liability insurer, Fine Steel Tooling's liability is limited to a maximum of 15% of the invoice value of the Agreement, at least that part of the Agreement to which Fine Steel Tooling's liability relates.
9. Fine Steel Tooling is not liable for damages suffered by the Client as a result of an infringement of intellectual property rights of third parties. The Client shall indemnify Fine Steel Tooling against third party claims regarding an infringement of intellectual property rights.
10.Without prejudice to the expiry periods referred to in Article 9, the limitation period for all legal claims against Fine Steel Tooling is one year. Notwithstanding the previous sentence, legal claims due to Consumers that are based on facts that would justify the assertion that a consumer purchase does not comply with the Agreement shall lapse two years.
11.In the case of a consumer purchase, the restrictions in this article do not extend further than permitted under Article 7:24 paragraph 2 of the Civil Code.
12.The limitations of liability in these general terms and conditions do not apply if the damage was caused by intent or conscious recklessness on the part of Fine Steel Tooling or its managerial staff.
13.The Client indemnifies Fine Steel Tooling against all third-party claims due to product liability as a result of a defect in a product delivered by the Client to a third party and of which the Materials delivered by Fine Steel Tooling form a part. The Client is obliged to compensate all damages suffered by Fine Steel Tooling in this respect, including the full costs of defence.
ARTICLE 15. | RETENTION OF TITLE, PLEDGE AND LIEN
1. All Materials supplied by Fine Steel Tooling remain its property until the Client has properly fulfilled all its obligations under the Agreement.
2. Subject to the provisions of paragraph 5, the Client is prohibited from selling, pledging or otherwise encumbering the Materials subject to retention of title.
3. If third parties seize the Materials subject to retention of title or wish to establish or assert rights to them, the Customer is obliged to inform Fine Steel Tooling thereof as soon as possible.
4. The Client gives unconditional permission to Fine Steel Tooling and any third parties appointed by Fine Steel Tooling to enter all those places where the Materials subject to retention of title are located.
Page 6 from 7 Fine Steel Tooling is entitled, in the event of default by the Customer, to take back the Materials referred to here and, if necessary, to dismantle them. All reasonable costs related to this shall be borne by the Client .
5. If Fine Steel Tooling cannot invoke retention of title because the Materials delivered have been retraced, the Client is obliged to pledge the newly formed items to Fine Steel Tooling.
6. Fine Steel Tooling has a right of lien on the Client's items in its possession in connection with the Agreement, for example in connection with the performance of Work on Fine Steel Tooling's premises, against anyone seeking their delivery. Fine Steel Tooling may also exercise the right of lien against the Customer for anything still owed to it in connection with previous Agreements.
7. All items held by Fine Steel Tooling in connection with the Agreement shall also serve as pawn for all claims it has against the Client.
ARTICLE 16. | CONFIDENTIALITY
1. Fine Steel Tooling will carefully preserve and keep secret all confidential information, such as confidential business information and data files of the Client and other confidential information Fine Steel Tooling learns of in the execution of the Agreement, insofar as an authority to the contrary does not imperatively follow from the nature or scope of the Agreement. The Client, his personnel and any third parties engaged by him are also bound to keep confidential any confidential information originating directly or indirectly from Fine Steel Tooling.
2. Information shall be considered confidential if it has been communicated by the Parties or arises from the nature of the information.
3. The parties will only use confidential information received from each other for the purpose for which it was provided.
4. The obligations of this article do not apply if either Party is obliged by law or a court ruling to provide confidential information to third parties. In that case, the other Party shall never be entitled to dissolve the Agreement or to compensation for any damage resulting from this.
5. Fine Steel Tooling is entitled to use the knowledge gained from the execution of the Agreement for other purposes, provided that no confidential information about (the organisation of) the Client, or persons involved in the provision of Services is brought to the attention of third parties.
ARTICLE 17. | FINAL PROVISIONS
1. Fine Steel Tooling is entitled to amend these general terms and conditions. If the occasion arises, the Client will be notified thereof, whereby the amended general terms and conditions will be provided to him, after which they will apply. In case of a Consumer, amended general terms and conditions shall not apply to an already concluded Agreement if and insofar as the amendments are to his disadvantage.
2. Fine Steel Tooling is entitled to assign its rights and obligations under the Agreement to a third party.
3. Each Agreement and all legal relationships arising therefrom between the Parties shall be governed exclusively by Dutch law.
4. The parties will not resort to court until after they have made every effort to settle the dispute by mutual agreement.
5. Only the competent court within the district of the East Brabant District Court will be designated in first instance to take cognisance of any legal disputes between the Parties, without prejudice to Fine Steel Tooling's right to designate another court competent by law. However, a Consumer is entitled to choose the judge competent by law within one month after Fine Steel Tooling has announced in Writing that it wishes to litigate before the judge appointed by it.
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Disclaimer: The above general terms and conditions are a translation of the original Dutch terms and conditions, typing and translation errors reserved.
For Fine Steel Tooling's original general terms and conditions, please refer to the Dutch text.
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