General terms and Conditions STROY B.V.February 2015 Copy
Article (1) General
- 1. These terms and conditions apply to every offer, quote and contract between the private company with limited liability Stroy B.V., with its registered office in Purmerend, the Netherlands, in Wielingenstraat 6a, hereinafter referred to as: ‘STROY’, and third parties to whom the offer has been made or with whom the contract has been entered, insofar as these parties have not deviated from these terms and conditions specifically and in writing.
2. The present conditions are equally applicable to contracts with STROY, for which third parties have to be hired by STROY in order to carried out the contract.
3. These general terms and conditions have been equally laid down for employees of STROY and its management.
4. Applicability of potential procurement conditions or other conditions of the client will be expressly rejected.
5. In the event that at any given moment, one or more terms in these general terms and conditions have been made partially void or null and void, that which remains of the terms and conditions will continue to be applicable. STROY and the client shall then confer, in order to draw up new terms that shall replace the terms and conditions that have been made void or void and null, in which the objective and meaning of the original terms and conditions will be taken into account as much as possible.
6. If it is not clear what the meaning is of one or more terms of these general terms and conditions, the meaning must be determined in the spirit of these terms.
7. If the parties are involved in a situation that has not been dealt with in these general terms and conditions, this situation must be determined in the spirit of these general terms and conditions.
8. If STROY does not desire continual and strict compliance with these conditions, this does not mean that the terms thereof are not applicable, or that STROY would lose its rights in any way in order to desire prompt compliance with the terms of these conditions.
Article (2) Quotes and Offers
- 1. All quotes and offers made by STROY are non-binding, unless the quote contains an acceptance period. A quote or offer will cease automatically after 14 days, or earlier if the service to which the quote or offer applies is no longer available in the meantime.
2. STROY cannot be bound by its quotes or offers if the client could reasonably be expected to understand that the quotes or offers, or parts thereof, contain an evident mistake or writing error.
3. The prices indicated in quotes and offers are exclusive of BTW (Dutch Goods and Services Tax) and other government taxes, potential costs to be made in regard to the contract, including travel and accommodation expenses, shipping costs and administrative costs, unless indicated otherwise.
4. If the acceptance (whether or not according to secondary aspects) deviates from that which has been offered in the quote or offer, then STROY is not bound to this. In this case, the contract has not come into force according to this deviate acceptance, unless STROY indicates otherwise.
5. A compiled price list does not compel STROY to carry out part of the order at a corresponding part of the price mentioned. Offers and quotes do not automatically apply to future orders.
6. All of the quotes given by STROY are partially based on the information, samples and documents provided by or on behalf of the client, of which STROY may assume their correctness and completeness.
Article (3) Contract
- 1. STROY is initially bound after it has confirmed the order it has been given in writing, or, in the case of no written confirmation, after it has assumed to carry out the assigned tasks.
2. A quote as mentioned in article 2, sub 1, is based on the number and type of data (hard disks, tapes or USB sticks) that has to be destructed as provided by the client. In the event that more, less or other types of data are offered for destruction, the client will be billed as described in article 6, sub 1.
3. If a period of time has been agreed upon or stated for the fulfilment of certain tasks or for the delivery of certain goods, then this will never be a statutory limit. If the period of time has been exceeded, the client must consequently declare STROY in default. STROY must be given a reasonable period of time in which it can still carry out the contract.
4. STROY has the right to delegate certain tasks to third parties.
5. STROY has the right to carry out the contract in several stages and therefore bill the client the stage that has been carried out separately.
6. If the contract is carried out in stages, STROY can postpone the carrying out of parts that belong to a following stage until the client has approved of the results of the preceding stage in writing.
7. The remains of the destructed data media shall be left by STROY with the client, unless parties make other arrangements in writing.
8. Potential costs relating to the destruction, including (expressly not excluding) supplementary taxation and/or environmental tax, must be borne by the client. Potential costs made by STROY shall be borne by the client.
Article (4) Postponement, termination and early ending of the contract
- 1. STROY is able to postpone the fulfilment of the obligations or to terminate the contract, if:
– the client fails to fulfil the obligations as stipulated in the contract, either wholly, partially or tardily;
– after the contract is in force, circumstances that have come to STROY’s knowledge provide grounds to doubt whether the client will not fulfil his obligations;
– after the contract is in force, the client has been requested to guarantee the fulfilment of his obligations as stipulated in the contract and a guarantee is not provided or a guarantee is insufficient;
– due to delay by the client, STROY can no longer be expected to fulfil the contract according to the conditions that were originally agreed upon, STROY is able to terminate the contract.
2. Furthermore, STROY has the right to terminate the contract if events take place of such a nature that fulfilment of the contract is impossible or if other events take place of such a nature that it cannot reasonably be expected of STROY to keep the contract in force unaltered.
3. If the contract is terminated, the outstanding claims that STROY has in regard to the client will immediately be collectable. If STROY postpones the fulfilment of obligations, it maintains its claims by law and the contract.
4. If STROY proceeds with postponement or termination, it will not be bound to compensate for damages and costs that result therefrom.
5. If the client is to be held liable for the termination, STROY has the right to compensation for damage, including costs that directly and indirectly result from this.
6. If the client does not fulfil his obligations deriving from the contract and this nonfulfillment is grounds for termination, STROY has the right to terminate the contract with immediate effect without any obligation to compensate for damages of any kind, while the client has the obligation to compensate for damages of any kind due to breach of contract.
7. In the event of liquidation, of (application for) suspension of payments or bankruptcy, of impoundment – if and insofar as the impoundment is not lifted within three months – borne by the client, of debt clearance or other circumstances in which the client’s property and possessions are no longer at the disposal of the client, STROY is permitted to terminate the contract with immediate effect or to cancel the contract, without any obligation to compensate for damages of any kind. In that case, claims that STROY has with the client are due immediately.
8. If the client cancels an order that has been placed wholly or partially, the client will be billed for the goods that have been ordered or arrangements that have been made to that end, plus potential forwarding costs, removal costs and shipping costs that arise therefrom and labour time reserved for the fulfilment of the contract.
Article (5) Force Majeure
- 1. STROY will not be bound to fulfilment of any obligation to the client if it is prevented from doing so as a result of any circumstances that are not due to blame, and nor by law, a legal transaction or in generally accepted standards are borne by STROY.
2. In these general terms and conditions, force majeure means, besides what it means in the law and case law, all external causes, either foreseen or not foreseen, over which STROY has no control, yet that prevent STROY from fulfilling its obligations. This includes strike actions in the STROY company or in the companies of third parties. STROY also has the right to lay claim to force majeure in the event that the circumstances that prevent (further) fulfilment of the contract, commence after STROY was supposed to fulfil its contract.
3. STROY may postpone the obligations resulting from the contract during the period of time in which force majeure continues. If this period of time lasts longer than two months, either party has the right to terminate the contract, without the obligation to compensate for damages of any kind that have been incurred by the other party.
4. Insofar as STROY has fulfilled the obligations resulting from the contract, either wholly or partially, at the moment that force majeure commenced, and is deserving of partial independent value, STROY has the right to bill the client separately for the fulfilled part or the part that has yet to be fulfilled. The client is bound to payment of this invoice as if a separate contract were in force.
Article (6) Payment and collection costs
- 1. Billing shall take place on the basis of recalculation. The certificate, that has been signed by both STROY and the client, stating the number of data media destructed by STROY, will serve as compelling evidence.
2. Payment must be made within 14 days of the invoice date, by method indicated by STROY in the currency stated in the invoice, unless indicated otherwise in writing by STROY.
3. If the client remains in default of timely payment of an invoice, the client will be in default by law. The client will then be obligated to pay interest at the rate of 2% per month, unless the legal interest rate exceeds this rate, in which case the legal interest rate is owed. The interest on the collectable amount will be calculated starting from the moment that the client is in default to the moment that the whole amount owed has been paid.
4. STROY has the right to allocate the payments made by the client to, in the first place the costs, subsequently to the incurred interest and finally to the main sum and the current interest.
5. STROY can, without being in default, refuse an offer of payment, in the event that the client indicates a different order for the allocation of that payment. STROY can refuse full payment of the main sum, in the event that neither the incurred interest nor the current interest and the collection costs are paid.
6. The client will never have the right to offset that which he owes to STROY.
7. Objections against the amount of the invoice cannot postpone payment obligations. The client who is not entitled to an appeal according to section 6.5.3 (articles 231 up to and including 247 book 6 of the Dutch Civil Code) does not have the right to postpone payment of invoices for other reasons.
8. In the event that the client is in default of (timely) fulfilment of his obligations, all reasonable costs made in order to obtain extra-legal fulfilment will be borne by the client. The calculation of the extra-legal costs will be based on what is commonplace in Dutch collection practice. However, if STROY has incurred higher collection costs that can be regarded as being necessary, the actual costs will be subject to fulfilment. Potential legal and enforcement costs shall also be collected from the client. The client is also obligated to pay interest on the collection costs owed.
Article (7) Liability
- 1. In the event that STROY were to be held liable, this liability is restricted to that which has been arranged in this article.
2. STROY is not liable for damage, of any nature, caused by STROY if it has used information provided by or on behalf of the client that is incorrect and/or incomplete.
3. STROY is not liable for damage, of any nature, caused when data has been wrongly offered for destruction. Of STROY can expressly not be expected that it shall check whether the data has been rightly offered for destruction.
4. STROY is not liable for damage, of any nature, caused by third parties who gained access by third parties to the remains of the destructed data and managed to recover information therefrom.
5. If STROY were to be liable for any damages whatsoever, the liability of STROY is restricted to no more than the value of one invoice of the order, at least to that part of the order to which the liability applies.
6. The liability of STROY is in any case restricted to the amount paid by the insurer where appropriate.
7. STROY is exclusively liable for direct damages.
8. By direct damages is exclusively meant the reasonable costs made in order to assess the cause and extent of the damage, insofar as the assessment applies to damage as stated in these conditions, potential reasonable expenses made to make up for STROY’s poor performance in regard to the contract, insofar as STROY can be held liable and reasonable costs incurred in order to prevent or minimize damage, insofar the client can prove that these costs led to the minimization of direct damage as meant in these general terms and conditions.
9. STROY will never be liable for indirect damage, including consequential damage, foregone revenue, foregone reductions and damages caused by business interruption.
10. The restrictions stated in this article regarding liability do not apply if the damage is due to intent or gross negligence by STROY or its employees in management positions.
Article (8) Indemnification
- 1. The client shall indemnify STROY for potential claims from third parties, who in connection with the fulfilment of this contract suffer damages and for which others than STROY are accountable.
2. In the event that STROY may be held accountable by third parties for that reason, client will be expected to assist STROY both extralegally and legally and to do everything that may be expected of him in this case without delay. If the client remains negligent in taking adequate measures, STROY has the right to do so without declaration of default. All costs and damages as a result of this that are incurred by STROY and third parties will be borne by the client.
Article (9) Applicable law and disputes
- 1. Dutch law, exclusively, is applicable to all legal relationships to which STROY is party, even if a contract is partially or wholly fulfilled abroad (outside of the Netherlands) or if the party involved in the legal relationship has its place of residence abroad. Applicability of the Vienna Sales Convention is excluded.
2. The court in the place of residence of STROY is exclusively competent to take note of disputes, unless the law expressly decrees otherwise. Nevertheless, STROY has the right to present disputes to the competent court according to Dutch law.
3. Parties shall not appeal to the court before they have done everything within their power to settle a dispute between themselves.
Article (10) Access and amendment of conditions
- 1. These terms and conditions:
– have been deposited at the Chamber of Commerce of the province of North-Western Holland;
– can be accessed on the STROY website (www.stroy.nl);
– will be sent free of charge on initial request.
2. The most recently deposited copy, i.e. the copy that was in force when the legal relationship with STROY commenced, is applicable.
3. The Dutch text of the general terms and conditions is always decisive in the interpretation thereof.