Termes et conditions
Article 1: Applicability, definitions
These General Terms and Conditions shall apply to every offer and every agreement
a. concerning a commission to carry out maintenance and/or repair work;
b. concerning purchase and/or sale; concerning lease and/or hire;
c. concerning a commission to provide services relating to calibration, instruction and training.
Of ’Technisch Handels- en Adviesbureau Vandentempel B.V’. and “Vandentempel Service B.V.” established in Hattem (NL), hereinafter referred to as “Vandentempel”.
2. The buyer or hirer or commissioning party, as appropriate, will be referred to as ‘the counterparty’.
3. In these General Terms and Conditions ‘written’ shall mean: by letter, e-mail, fax or by any other means of communication which, considering the current technical practices and generally accepted views, may be deemed equivalent.
4. In these General Terms and Conditions ‘equipment’ shall mean: the measuring, regulating and testing equipment supplied, to be supplied or provided by Vandentempel as well as any materials, spare parts etc. required or separately supplied in the context of the repair and/or maintenance work to be carried out.
5. In these General Terms and Conditions ‘documents’ shall mean: the drawings, reports, designs, etc. to be produced or provided by Vandentempel and/or the drawings, reports, designs etc. to be by the counterparty. These documents, including digital files, may be recorded both in writing and on other data carriers such as CD ROMs, DVDs, USB sticks, etc.
6. In these General Terms and Conditions ‘information’ shall mean: both the documents and other (verbal) information (to be) provided by either Vandentempel and/or the counterparty.
7. Should (any part of) any provision of these General Terms and Conditions not apply the remaining provisions will remain in full force and effect.
8. In the event of any discrepancy or inconsistency between these General Terms and Conditions and any translation of the same, the Dutch text shall prevail.
9. These General Terms and Conditions shall equally apply to any subsequent and/or partial orders and/or any subsequent and/or partial commissions ensuing from the Agreement.
10. If Vandentempel has provided the counterparty with these General Terms and Conditions on several occasions a consistent business relationship may be deemed to exist. In such case, Vandentempel need not repeatedly provide the counterparty with these General Terms and Conditions for them to apply to subsequent agreements.
Article 2: Offers, quotations
1. Each and every offer and/or quotation provided by Vandentempel shall be valid for the period specified therein. An offer or quotation in which no validity period is specified is without obligation. Vandentempel is entitled to revoke an offer without obligation or a quotation without obligation within 2 working days of receipt of confirmation of the said order or quotation.
2. The prices and rates specified in an offer, quotation or price list are exclusive of applicable VAT and any costs such as transport costs and postage, call-out charges, administration costs, and expense claims from any third parties engaged.
3. A composite offer or quotation will not oblige Vandentempel to deliver part of the performance quoted at a proportionate part of the price.
4. If the offer or quotation is based on information provided by the counterparty and this information proves to be incorrect or incomplete or later be changed, Vandentempel shall be entitled to adjust the specified prices, rates and/or delivery periods.
5. The offer, quotation, prices and/or rates will not automatically apply to subsequent orders or subsequent commissions.
6. While all models and examples shown and capacities, technical specifications, functionalities and other properties and descriptions given in brochures, promotional materials and/or on Vandentempel’s website are as accurate as possible, these are indicative only The counterparty can derive no rights from them whatsoever.
7. Vandentempel shall be entitled to charge the counterparty any costs incurred in relation to an offer, provided the counterparty was informed of such costs in advance.
Article 3: Conclusion of agreements
1. The agreement will be concluded once the counterparty has accepted Vandentempel’s offer, also in the event that such acceptance deviates from the offer in minor respects. Should the acceptance by the counterparty deviate in substantial respects however, the agreement will not be concluded until Vandentempel has consented to such deviations in writing.
2. Vandentempel will only be bound by:
a. a commission or order without a preceding offer;
b. verbal agreements;
c. additions or amendments to the General Terms and Conditions or Agreement;
upon written confirmation of such to the counterparty or once Vandentempel – without any opposition from the counterparty – has commenced fulfilment of the commission, order or agreements.
Article 4: Fees, prices, rates
1. Unless the parties have agreed an hourly rate, Vandentempel shall deliver the agreed performance for a fixed fee.
2. Vandentempel is entitled to increase this fixed fee if, during the performance of the agreement, it transpires that the agreed or expected volume of work had been miscalculated by the parties, through no fault of Vandentempel, and it cannot reasonably be expected to carry out the agreed work for the agreed fee.
3. If both parties have agreed to work being carried out at an hourly rate, Vandentempel shall calculate the fee to be charged on the basis of the number of hours worked at the agreed rate or Vandentempel’s usual rate.
4. The hourly rates apply to normal working days, which shall mean: Monday through Friday (with the exception of official public holidays) for the times agreed between the parties.
5. Vandentempel shall be entitled to apply a surcharge in addition to the hourly rate for of urgent orders or in the event that the work is carried out outside the working days specified in the previous section of this Article.
6. In the event of any dispute between the parties as to the hours worked and/or charged, Vandentempel’s records of time worked shall be binding barring evidence to the contrary on the part of the counterparty.
7. Should any amendments to legislation and/or regulations, government measures, currency fluctuations or changes in the prices of the required materials lead to an increase of the (cost) price for Vandentempel between the conclusion date of the agreement and the performance thereof, Vandentempel shall be entitled to increase the agreed prices and rates accordingly and to charge the same to the counterparty.
Article 5: Engaging third parties
Should Vandentempel deem this necessary for the due and proper performance of the Agreement, Vandentempel may have certain deliveries, work and/or services carried out by a third party.
Article 6: Obligations of the counterparty
1. The counterparty shall ensure that: 2.The counterparty shall ensure that all information provided is accurate and complete and indemnify Vandentempel against any third party claims arising from the inaccuracy and/or incompleteness of the information.
a. all information required for the performance of the Agreement is provided to Vandentempel promptly and in the required manner;
b. any data carriers, files etc. provided to Vandentempel by the counterparty are free of viruses and defects;
c. if the work is to be carried out at the counterparty’s site Vandentempel shall have access to the site where the work is to be carried out between the agreed dates and times;
d. the equipment Vandentempel is to work on is available to Vandentempel at the agreed times;
e. the site to which the equipment is to be delivered is accessible on the agreed date and the agreed period;
f. at the site where the work is to carried out any electricity, gas and water supplies required by Vandentempel are indeed available to Vandentempel free of charge;
g. any working hours lost due to loss of water, gas or electricity supply will be for the account of the counterparty; any other facilities reasonably required by Vandentempel at the site where the work is to be carried out are available to Vandentempel free of charge;
h. a room is available at the worksite where Vandentempel’s equipment, tools, materials etc. can be stored or locked to prevent any possible damage or the
2. The counterparty shall ensure that all information provided is accurate and complete and indemnify Vandentempel against any third party claims arising from the inaccuracy and/or incompleteness of the information.
3. Vandentempel shall treat all information provided by the counterparty as confidential and only disclose this information to a third party insofar as necessary for the performance of the Agreement.
4. The counterparty will be liable for the loss, theft or any other damage to the equipment, tools, materials etc. used or stored by Vandentempel at the counterparty’s site during the execution of the work.
5. Failure on the part of the counterparty to fulfil the aforementioned obligations in good time will entitle Vandentempel to suspend the performance of the Agreement until such time as the counterparty has fulfilled all its obligations. The costs relating to the resulting delays or loss of working hours, the costs of conducting additional work and any other ensuing costs shall be at the expense and risk of the counterparty.
6. Should the counterparty fail to fulfil its obligations and Vandentempel refrain from demanding fulfilment, this shall in no way affect Vandentempel’s right to demand fulfilment at a later date.
Article 7: Delivery, delivery terms
1. Agreed delivery terms can never be considered strict deadlines. Should Vandentempel fail to deliver the agreed performance or fail to do so in time, the counterparty shall issue Vandentempel with a written notice of default and granting Vandentempel a reasonable period within which to meet the delivery deadlines.
2. Vandentempel shall be entitled to make delivery in instalments and, in such event, to invoice each instalment separately.
3. The risk of the equipment to be delivered will pass to the counterparty upon delivery. This is the moment the equipment to be delivered leaves the premises or warehouse of Vandentempel or Vandentempel has notified the counterparty that it may collect the equipment. In the event that Vandentempel delivers the equipment to the counterparty itself or arranges any such delivery, the risk will pass to the counterparty the moment the equipment arrives at the site of and is actually available to the counterparty.
4. Shipping or transportation of the equipment shall occur at the risk and expense of the counterparty and in a manner determined by Vandentempel. Vandentempel will not be liable for any damage of any kind whatsoever – to the actual equipment or otherwise – which is in any way related to the shipping or transportation.
5. Should it prove impossible for the equipment to be delivered or collected (in the agreed manner) due to causes within the control of the counterparty, Vandentempel will be entitled to store the equipment at the risk and expense of the counterparty. The counterparty must collect the equipment or give Vandentempel an opportunity to deliver the equipment within a specified period after being notified of such storage, as determined by Vandentempel.
6. Should the counterparty continue to fail to fulfil its obligation to take delivery within the period referred to in the previous section, the counterparty will be immediately in default. Vandentempel shall then be entitled to dissolve the Agreement in whole or in part with immediate effect by means of a written statement and to sell the equipment to third parties without being held to any compensation of damages, costs or interest whatsoever. The provisions in the previous section of this Article shall not affect the counterparty’s obligation to compensate for any costs (of storage), losses due to delays, loss of profit or any other loss incurred or affect Vandentempel's right to demand fulfilment.
7. The agreed delivery term shall not commence until such time as Vandentempel has received all information necessary for the delivery and any agreed (advance) payment from the counterparty.
Article: 8 Packaging
1. Packaging intended for reuse will remain the property of Vandentempel. This packaging may not be used by the counterparty for any purpose other than that for which it is intended.
2. Vandentempel shall determine whether the counterparty is to return the packaging or that Vandentempel will collect it and at whose expense.
3. Vandentempel shall be entitled to charge the counterparty a deposit for this packaging. In the event that the counterparty returns the packaging carriage paid within the agreed period Vandentempel shall be obliged to accept the returned packaging and to refund the deposit charged or set the deposit off against the deposit payable by the counterparty for a following delivery. If the packaging is damaged, incomplete or destroyed, the counterparty shall be liable for the said damage and forfeit its right to a refund of the deposit paid.
4. Should the damage referred to in the previous section of this Article be more than the deposit charged Vandentempel shall not be obliged to accept return of the packaging. Vandentempel shall then be entitled to charge the packaging to the counterparty at cost price less the deposit already paid by the counterparty.
5. Vandentempel need not accept the return of packaging intended to be used once only and may leave this packaging with the counterparty. Any costs involved in disposing of this packaging will be for the account of the counterparty.
Article 9: Lease
1. This article applies to any agreement concluded between Vandentempel and the counterparty in respect of the lease or temporary provision of equipment by Vandentempel to the counterparty.
2. Vandentempel shall be entitled to determine a deposit payable by counterparty to Vandentempel before the commencement of the lease period.
3. Vandentempel shall be entitled to request that the counterparty provide proof of identification and/or a copy thereof.
4. Vandentempel shall determine whether it will deliver the leased equipment to the counterparty or that the counterparty should collect it.
5. The counterparty shall ensure that:
a. the leased equipment is inspected immediately on collection or delivery for defects, damage, etc. The counterparty is to report any defects, damage etc. to Vandentempel immediately after collection or delivery; in the absence of any such report the leased equipment shall be deemed to have been given or delivered to the counterparty in undamaged condition and with no defects;
b. he/she has suitable means of transport in the event of collection of the leased equipment from and return to Vandentempel. The counterparty will bear the transport risk.
c. the leased equipment is used in compliance with any instructions, user directions etc. provided by Vandentempel;
d .the leased equipment remains in good condition throughout the lease period. The counterparty shall be liable for any damage occurring during the lease period and must report this damage to Vandentempel immediately after the damage has occurred providing all the details. The damage may be only repaired by Vandentempel or – with its explicit permission – upon the instructions of Vandentempel;
e. Vandentempel is informed immediately of any seizure of the leased equipment – including a seizure of property found on the premises by the tax authorities– or if there are any grounds to expect seizure. The counterparty shall also immediately inform the creditor that the leased equipment is the property of Vandentempel;
f. at the end of the lease period the counterparty shall return the leased equipment to Vandentempel or make the leased equipment available for collection in the same condition and in the same packaging in which it was received. Any costs incurred in respect of the loss or damage of the leased equipment or parts thereof and any costs necessarily incurred to restore the leased equipment to the condition in which it was received, with the exception of normal depreciation and costs resulting from wear, will be for the account of the counterparty.
6. Vandentempel shall inspect the returned equipment immediately. The counterparty may be present during this inspection.
7. The counterparty shall owe the lease price agreed by the parties in respect of the entire lease period.This lease period commences:
a. at the time the leased equipment leaves the premises of Vandentempel, in the event of collection by the counterparty;
b. at the time the leased equipment is delivered to the counterparty, in the event of delivery to the counterparty by Vandentempel;
and ends at the time the leased equipment including all accessories and attachments have been returned to and received by Vandentempel. The days of collection by or delivery to the counterparty and of return delivery to or receipt by Vandentempel are included as whole days in the lease period.
8. If the parties have agreed that Vandentempel shall deliver the leased equipment to the counterparty, any delays that occur during the loading, transportation and unloading of the leased equipment and are attributable to circumstances which may reasonably be deemed to be at the risk of the counterparty, shall also be included in the lease period. These circumstances will not result in a later commencement of the lease period.
9. In addition, the lease period will be extended by any delay in the return of the leased equipment at the end of the agreed lease period, including the time involved in repairs, cleaning of the leased equipment etc. due to negligence on the part of the counterparty. In addition to payment of the lease price in respect of this extension, Vandentempel shall also be entitled to demand payment by the counterparty of compensation for any losses incurred by Vandentempel.
10. Should the counterparty fail to return the leased equipment to Vandentempel, for whatever reason, the counterparty shall be obliged to compensate Vandentempel for any and all loss incurred, including the replacement value of the leased equipment and the loss of profit.
11. Vandentempel shall be entitled to set off any costs and damages for the account of the counterparty against the deposit to be refunded to the counterparty.
12. The leased equipment shall remain the property of Vandentempel at all times. The counterparty may not sub-lease the leased equipment, make the same available to any third party or grant any third party any rights to the leased equipment or many modifications or adjustments to the leased equipment save with the prior written consent of Vandentempel. The counterparty must at all times avoid creating the impression that they otherwise have control of the leased equipment.
Article 10: Training and Education Courses
1. At the request of and in consultation with the counterparty Vandentempel can provide training and education courses. On request Vandentempel shall provide a specified, targeted offer to the counterparty.
2. Vandentempel shall provide competent instructors for the training/education courses.
3. Vandentempel shall make every effort to ensure that the training/education course can take place on the agreed dates and/or times. However, if the training/education course cannot take place on the agreed dates and times, due to unforeseen circumstances, Vandentempel shall be entitled to change the agreed dates and times in consultation with the counterparty.
4. Vandentempel reserves the right to replace the intended instructor for the training/education course should circumstances be reasonable cause for this, such as illness on the part of the instructor.
5. In the event of the provision of a training/education course the counterparty shall observe the house rules implemented by Vandentempel or any third party in respect of the training/education course at the appropriate training location and any other applicable regulations and to ensure that all participants registered on their behalf also observe these rules and regulations.
6. The counterparty must treat and use all teaching materials and other property lent to the counterparty by Vandentempel with due care and in accordance with the directions, instructions, manuals etc. issued.
7. Vandentempel has developed and compiled the training materials used with due care and to the best of its abilities. Nonetheless, Vandentempel can never guarantee the accuracy and exhaustiveness of the training materials due to possible reprints, new editions etc. published after the training/education course commences.
Article 11: Progress, performance of the agreement
1. If the commencement, progress or delivery of the work or the agreed delivery of equipment is delayed due to:
a. Vandentempel not having received all the necessary information from the counterparty in good time;
b. Vandentempel not having received any agreed (advance)payment from the counterparty in good time;
c. other circumstances at the risk and expense of the counterparty;
Vandentempel shall be entitled to a reasonable extension of the delivery term and to compensation for the cost and loss involved.
2. Vandentempel shall make every effort to complete the agreed work and deliveries within the agreed and scheduled time, as far as can reasonably be expected. If the performance of the Agreement is to be advanced at the request of the counterparty, Vandentempel shall be entitled to charge the overtime hours this involves and any other costs to the counterparty.
3. Vandentempel is obliged to execute the work well, thoroughly and in compliance with the provisions of the Agreement, in such a way that damage or injury to persons or property is avoided as far as possible, and to observe any orders and instructions issued by the counterparty in this respect as much as possible.
4. Vandentempel must draw the attention of the counterparty to any inaccuracies, errors, shortcomings etc. in:
a. documents issued by or on behalf of the counterparty;
b. working methods etc. prescribed by or on behalf of the counterparty;
c. instructions given by or on behalf of the counterparty;
In as far as these inaccuracies, errors, shortcomings etc are relevant to Vandentempel’s performance and they are or could be familiar with them.
5. If during the performance of the agreement it transpires that the work and/or deliveries cannot be performed in the agreed manner, owing to unforeseen circumstances, Vandentempel shall consult the counterparty on amending the Agreement. In such case Vandentempel shall inform the counterparty of the consequences of the amendment for the agreed prices, rates and delivery terms. Should this render the performance of the Agreement impossible Vandentempel shall, in any event, be entitled to full remuneration for the work performed and deliveries made.
Article 12: Contract variations
1. Contract variations shall mean: any extra work carried out and/or deliveries made at the request of the counterparty or necessarily arising as a result of the assignment and not included in the offer or quotation.
2. Contract variations must be agreed by Vandentempel and the counterparty in writing. Verbal agreements will only be binding on Vandentempel once these have been confirmed by the counterparty in writing or once Vandentempel has commenced performance of these agreements, without any opposition from the counterparty.
Article 13: Maintenance and repairs
1. The parties may conclude a separate agreement with regard to performing periodic maintenance, such as calibration, or repairing malfunctions, including faults and defects etc.
2. The counterparty shall report any detected faults, defects, and failures etc. to Vandentempel, in compliance with Vandentempel’s usual procedures. On receipt of any such report Vandentempel shall make every effort to resolve the detected faults, failures, etc. to the best of its ability as soon as possible.
Article 14: Delivery
1. Vandentempel must notify the counterparty that the agreed work has been completed and that the result is ready for use.
2. The result of the work shall be deemed to have been completed in compliance with the Agreement has inspected the result and signed the delivery report or work order as approved.
3. The result of the work will also be deemed to have been delivered in compliance with the Agreement if the counterparty has not put in a claim to Vandentempel within a period of 2 weeks from the notification that the work had been completed or as much sooner as the counterparty commenced using the result before this date.
4. Should the counterparty detect any faults, imperfections etc, after the delivery referred to in this article, the provisions of the article ’Complaints’ incorporated in these General Terms and Conditions shall apply.
Article 15: Complaints
1. The counterparty must inspect the delivered equipment immediately on receipt and report any visible damage and/or defects on the bill of lading or accompanying form. In the absence of a bill of lading or accompanying form the counterparty must report the damage and/or defects to Vandentempel within 2 working days of receipt, followed by written confirmation. In the absence of any such report the equipment will be deemed to have been received in good condition and in compliance with the Agreement.
2. Any other complaints must be reported to Vandentempel in writing immediately after discovery and within the agreed guarantee period at the latest. All consequences of not reporting any irregularities immediately will be at the risk of the counterparty. If no guarantee period has been expressly agreed a guarantee period of one year from delivery shall apply.
3. Any complaints about the work performed and/or the services delivered should also be reported to Vandentempel immediately after discovery, within a (guarantee) period to be defined by Vandentempel, followed by written confirmation. If no such (guarantee) period has been agreed, a (guarantee) period of one month shall apply. In the absence of any such report the work will be deemed to have been performed and/or the services to have been delivered in compliance with the Agreement.
4. If a complaint is not reported to Vandentempel within the periods stated in the previous sections, it will not be possible to claim on an agreed guarantee. In addition to which, all consequences of not reporting any irregularities immediately will be at the risk of the counterparty.
5. Minor deviations accepted in the sector with regard to specified capacities, (technical) specifications, functionalities etc. shall not constitute a shortcoming on the part of Vandentempel. A claim on the guarantee in this respect is not possible.
6. Complaints do not suspend the payment obligation of the counterparty.
7. The counterparty must enable Vandentempel to investigate the complaint and provide Vandentempel with all information relevant to the complaint.
8. Should the investigation of the complaint require that the delivery be returned, this delivery will be at the expense of the counterparty unless the complaint is later found to be justified.The counterparty will always bear the transport risk. In all events, deliveries will be returned in original packaging and in the manner determined by Vandentempel.
Article 16: Guarantees
1. Vandentempel shall ensure that the agreed deliveries, work and services are duly executed in accordance with the prevailing standards in the sector but, with regard to these deliveries, work and services, shall never provide a more comprehensive guarantee than explicitly agreed between the parties.
2. Vandentempel guarantees the usual standard quality and reliability of the delivered equipment for the duration of the guarantee period.
3. If the equipment delivered by Vandentempel is supplied with a manufacturer’s guarantee the guarantee will equally apply between the two parties. Vandentempel shall inform the counterparty of such.
4. Should the purpose for which the counterparty wishes to use the equipment vary from the usual purpose, Vandentempel shall only guarantee that the equipment is suitable for this purpose if it has confirmed such to the counterparty in writing.
5. No claim on the guarantee will be possible until the counterparty has paid the agreed price for the equipment and/or the agreed remuneration for the work.
6. In the event of a justified claim Vandentempel will, at its discretion, repair or replace the equipment free of charge, duly perform the agreed work or offer a refund of or a discount on the agreed price. In the event of any additional damage, the provisions of the article "Liability" incorporated in these General Terms and Conditions.
Article 17: Liability
1. Vandentempel shall accept no liability whatsoever other than for the results explicitly agreed or guaranteed by Vandentempel.
2. Without prejudice to the provisions of the previous section of this article, Vandentempel shall be liable for direct damage only. Any other liability on the part of Vandentempel for consequential damage, including but not limited to trading losses, lost profits and/or incurred losses, losses due to delays and/or personal or bodily injury is explicitly excluded.
3. The counterparty must take all necessary steps to prevent or minimise any damage.
4. Should Vandentempel be liable for any damages incurred by the counterparty, Vandentempel’s obligation to pay compensation shall always be limited to the maximum amount its insurer will pay out in such cases. In the event that the insurer will not pay out or that the insurance affected by Vandentempel does not cover the damage, Vandentempel’s obligation to pay compensation will be limited to the invoice amount for the equipment delivered, the work performed and /or the services provided.
5. The counterparty must hold Vandentempel liable for the losses incurred within 6 months of becoming aware having been in a position to become aware of the said loss.
6. In the event that the counterparty provide materials and/or components for further processing, Vandentempel shall be responsible for the correct processing but not for the soundness of the actual materials or components.
7. Vandentempel shall never be liable for any damage or loss incurred as a result of work carried out or deliveries made by or on behalf of the counter party.
8. Vandentempel shall not be liable for any damage or loss as a result of the counterparty’s production process coming to a standstill or not functioning optimally.
9. Vandentempel shall not be liable and the counterparty cannot claim on the applicable guarantee for damage or loss arising:10.In the cases summarised in the section above the counterparty shall be wholly liable for any damage or loss arising from this and shall expressly indemnify Vandentempel against any third-party claims for such damage or loss.
a. due to incompetent use or use contrary to the intended purpose of the equipment supplied and or contrary to instructions, guidelines, user manuals etc. provided by or on behalf of Vandentempel;
b. due to inadequate or incompetent maintenance of the equipment;
c. due to normal wear;
d. due to any inaccuracies or incompleteness in the information provided to Vandentempel by or on behalf of the counterparty.;
e. due to directions or instructions from or on behalf of the counterparty;
f. due to the counterparty’s choice of equipment to be delivered;
g. due to repairs or other work being carried out on the equipment delivered without the explicit prior consent of Vandentempel.
10. In the cases summarised in the section above the counterparty shall be wholly liable for any damage or loss arising from this and shall expressly indemnify Vandentempel against any third-party claims for such damage or loss.
11. The liability limitations contained in this article shall not apply if the damage or loss is attributable to the intent and/or deliberate recklessness on the part of Vandentempel or the supervisory staff at directorial level or if they contradict any mandatory rules of law. In these cases exclusively Vandentempel shall indemnify the counterparty against any third-party claims.
Article 18: Payment
1. Vandentempel shall always be entitled to demand (part) payment in advance or any other form of security from the counterparty in respect of payments.
2. Payment must be made within a payment period of 30 days from the invoice date, unless the parties have agreed an alternative term of payment in writing. The accuracy of an invoice shall also be confirmed if the counterparty has not objected within this term of payment.
3. If, after expiry of the period referred to in the previous section, an invoice has not been paid in full or a direct debit payment has failed, default interest of 2% per month shall accrue on the principal sum owed by the counterparty to Vandentempel. In such case any part of a month will count as a whole month.
4. Should payment still not be made despite an overdue notice from Vandentempel, it shall also be entitled to charge extrajudicial collection costs of 15% of the invoice amount with a minimum of €150.
5. In the event of continued failure on the part of the counterparty to make full payment Vandentempel shall be entitled, without further notification, to dissolve the Agreement by means of a written statement or to suspend its obligations arising from the Agreement until the counterparty has paid or provided adequate collateral for such.
6. Vandentempel shall also have the aforementioned right of suspension if, before the counterparty is actually in default of payment, Vandentempel has well-founded reasons for doubting the creditworthiness of the counterparty. Vandentempel shall always first settle any payment made by the counterparty against the interest and costs due and subsequently against the oldest outstanding invoices, unless the counterparty has specified in writing that the payment should be settled against a later invoice.
7. The counterparty may not set off amounts payable to Vandentempel against any amounts payable to the counterparty by Vandentempel. This shall also apply in the event that the counterparty applies for (provisional) suspension of payments for is declared bankrupt.
Article 19: Retention of title
1. Vandentempel reserves the right to retain the title of all equipment and training materials delivered or yet to be delivered pursuant to the Agreement until such time that the counterparty has fulfilled all payment obligations to Vandentempel.
2. The payment obligations referred to in the previous section are made up of the payment of the purchase price of the equipment or training materials plus any charges in respect of work carried out in relation to the delivery and charges in respect of any attributable failure on the part of the counterparty to meet its obligations, such as demands for the payment of compensation due, extrajudicial collection costs, interest and possible penalties.
3. As long as Vandentempel retains the ownership of the equipment and the training material, the counterparty may not pledge these in any way whatsoever to or placed in the (de facto) power of a financer by means of a list of pledged assets.
4. The counterparty shall inform Vandentempel immediately should any third party pretend to hold property rights or any other rights on the equipment and materials delivered, which are subject to retention of title.
5. For as long as the delivered property is subject to retention of title, the counterparty shall store the delivered property with care and clearly identified as the property of Vandentempel.
6. The counterparty shall duly arrange such business insurance and building contents insurance that the equipment and training materials provided will be insured at all times and shall allow Vandentempel at first request insight into the insurance policy and proof of the appropriate premium payments.
7. Should the counterparty act in violation of the provisions of this article, or Vandentempel invoke its retention of title, the irrevocable right to access the counterparty’s premises in order to take back the delivered property that is subject to the retention of title shall fall to Vandentempel and its employees. This shall not prejudice Vandentempel‘s right to compensation of damages, loss of profits and interest and its right to dissolve the Agreement without further notification by means of a written statement.
Article 20: Intellectual property
1. Unless agreed otherwise by the parties in writing, Vandentempel is and will remain the holder of all intellectual property rights in, arising from, connected with and/or belonging to the training materials delivered or made by Vandentempel within the context of the Agreement. Both during and after the performance of this Agreement Vandentempel shall have the explicit and exclusive right to exercise these rights.
2. Among other things, this means that:
a. the counterparty may not use the training materials delivered or made by Vandentempel beyond the context of this Agreement; may not give the materials to third parties, may not allow any third party insight into the materials and may not multiply the materials without the prior written consent of Vandentempel. b. the counterparty may not copy, change or reproduce the materials delivered or made by Vandentempel without the prior written consent of Vandentempel.
Article 21: Right of retention
1. Vandentempel shall be entitled to postpone the return of equipment owned by the counterparty which Vandentempel has in its possession for the purpose of the maintenance or repair in the event that and for the duration that:
2. Vandentempel shall not be liable for any damage or loss, of any nature whatsoever, arising from it exercising its right of retention.
a. the counterparty has not yet paid the full cost of the work carried out on the equipment;
b. the counterparty has not yet paid the full cost of the work previously carried out by Vandentempel on the equipment;
c. the counterparty has not paid or not paid in full any other claims due and payable arising from the contractual relationship with Vandentempel.
3. Vandentempel shall not be liable for any damage or loss, of any nature whatsoever, arising from it exercising its right of retention Article
Article 22: Bankruptcy, legal incompetence etc.
1. Vandentempel shall always be entitled to dissolve the Agreement by means of a written declaration to the counterparty without further notification at such time that the counterparty:
a. has been declared bankrupt or a petition for its bankruptcy has been filed;
b. applies for (provisional) suspension of payments;
c. has been served with a write of attachment;
d. has been placed under legal restraint or administration otherwise loses its power of disposal or legal competence with regard to its assets or parts thereof.
2. The counterparty must always inform the liquidator or administrator of (the content of) the Agreement and these General Terms and Conditions.
Article 23: Force majeure
1. In the event of force majeure on the part of the counterparty or Vandentempel, Vandentempel shall be entitled to dissolve the Agreement by means of a written statement to the counterparty or to suspend the fulfilment of its obligations towards the counterparty for a reasonable period without being held liable to any compensation whatsoever.
2. For the purposes of these General Terms and Conditions force majeure on the part of Vandentempel shall mean: a non-attributable shortcoming on the part of Vandentempel, the third parties engaged by Vandentempel or other compelling reasons on the part of Vandentempel.
3. Circumstances considered force majeure on the part of Vandentempel shall include: war, riot, mobilisation, domestic and foreign disturbances, government measures, strikes within the organisation of Vandentempel and/or the counterparty or threat of these and other such circumstances, disruption of the exchange rate parities that existed at the time the Agreement was concluded, business interruptions due to fire, burglary, sabotage, loss of electricity supply, internet and telephone connections, natural phenomena, (natural) disasters etc. and transport and delivery problems caused by adverse weather conditions, road blocks, accidents, import and export restrictions, as well as the illness or death of the intended instructor as a result of which Vandentempel is not reasonably able to find adequate replacement in time.
4. In the event that the force majeure situation occurs at such time that the Agreement has already been performed in part or in full the counterparty must, in any event, fulfil its obligations towards Vandentempel.
Article 24: Cancellation, suspension
1. Should the counterparty wish to cancel the Agreement, before or during the performance thereof, the counterparty shall owe compensation to Vandentempel the amount of which is be determined by Vandentempel. This compensation shall cover all costs incurred by Vandentempel and damages and/or losses suffered including any loss of profit, Vandentempel shall be entitled to determine the compensation and, at its discretion and depending on the work and services already delivered, to charge the counterparty between 20% and 100% of the agreed price.
2. Should the counterparty cancel or postpone a scheduled appointment less than 24 hours in advance, Vandentempel shall be entitled, in any event, to charge the counterparty for the time reserved on the basis of the agreed rate or, in the absence of such, the counterparty’s usual hourly rate.
3. The counterparty will be liable to third parties for the consequences of the cancellation and shall indemnify Vandentempel against any third-party claims arising from this.
4. Vandentempel shall be entitled to set off all amounts paid by the counterparty against the compensation to be paid by the counterparty.
5. In the event of suspension of the performance of the Agreement at the request of the counterparty, compensation for all work carried out and all costs incurred at that time shall become immediately due and payable and Vandentempel shall be entitled to charge the counterparty for the same. Vandentempel shall also be entitled to charge to the counterparty all costs incurred or to be incurred during the period of suspension and of the hours reserved for the period of suspension.
6. If the performance of the Agreement cannot be resumed after the agreed period of suspension, Vandentempel shall be entitled to dissolve the Agreement by means of a written statement to the counterparty. If the performance of the Agreement is resumed after the agreed period of suspension, the counterparty shall be required to compensate any costs incurred by Vandentempel as a result of this resumption.
Article 25: Applicable law / competent court
1. The Agreement concluded between Vandentempel and the counterparty is subject exclusively to Dutch law.
2. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
3. Any disputes will be submitted to the competent in the jurisdiction where Vandentempel is domiciled, albeit that Vandentempel will reserve the right to submit a dispute to the competent court in the jurisdiction where the counterparty is domiciled.
4. If the counterparty is domiciled outside the Netherlands, Vandentempel will have the right to choose to submit the dispute to the competent court in the country in which the counterparty is domiciled.
Date: March 20 2012