General Sales Terms and Conditions CUBIQZ
The original Dutch version of these conditions can be translated into other languages. This is a service; the translated version is unofficial. In the event of a dispute or a discrepancy between the Dutch version and a translation of this, the Dutch version will be considered as the definitive version by the law in the highest permitted degree. You can not derive any rights from the translated version. Insofar as there are problems with understanding the general terms and conditions in the English language, this must be explicitly reported to us prior to an order. If this is not reported, the general conditions are clear and are understood by you.
Article 1 (definitions)
- User: CUBIQZ, established in Enschede.
- Contractor: the contract party of the user.
- BW: the Civil Code under Dutch law.
- Delivery: the legal delivery within the meaning as described in the Dutch Civil Code (BW).
- Delivery: the actual delivery on behalf of the contractor.
Article 2 (applicability)
- These conditions apply to all offers, quotations, agreements, deliveries or other services of or with user. The User explicitly rejects the applicability of any General Terms and Conditions used by the Contractor.
- The nullity and voidability of one or more provisions in these General Terms and Conditions do not affect the legality of the other provisions. With regard to this(/these) provision (s), statutory conversion takes place pursuant to Section 3:42 of the Dutch Civil Code.
- In the event that one or more provisions in these General Terms and Conditions are deviated from, the other provisions will remain fully applicable. Only deviations agreed in writing between the user and the contractor are valid.
- The applicability of the Vienna Sales Convention is excluded on all legal relationships in the broadest sense of the word between the user and the contractor.
Article 3 (offers, quotations and prices)
- All offers and quotations from the user are without obligation, even if they include a period for their acceptance.
- All quotations in tenders or offers are subject to change unless expressly agreed otherwise in writing. All quoted prices or offers are net, therefore excluding: VAT, import duties, other taxes, levies and duties, costs of loading and unloading and transport, packaging costs, administration costs, design and consultancy costs, assembly and installation costs, costs of commissioning unless explicitly stated or agreed otherwise. A composite quotation does not oblige the user to deliver part of the goods or services mentioned in the offer or quotation at the specified (partial) prices.
- If the user takes care of the shipping of the purchased goods, the user always invoices the transport and packaging costs design and advice costs separately to the client.
- The User is entitled, among other things, to pass on any increases that have occurred in wages, raw materials prices, transport costs, exchange rates, insurance premiums and government levies, including taxes, import duties and such to the Contractor, after the offer or offer has been issued for the work, deliveries or services that must still be performed or delivered by the user at the moment of the increase.
Article 4 (realization of the agreement and changes afterwards)
- The agreement between the user and the contractor only comes into being after the user has confirmed the acceptance of the offer or quotation to the contractor in writing by means of an order confirmation and that confirmation comes from the management or an authorized representative and has implemented the agreement. As long as the user has not confirmed the acceptance to the contractor in writing, the user can revoke or change the offer or quotation.
- If a revocation or change as referred to in paragraph 1 (second sentence) of this article leads to a new offer or quotation from user, the provisions in article 3 and in paragraph 1 of this article shall apply mutatis mutandis.
- If the Contractor accepts reservations or changes in the offers or quotation or refers to different (general) terms and conditions, in deviation from the previous paragraphs the agreement will only be concluded if the User has also confirmed to the Contractor in writing that he can fully, completely and without reservation agree with it.
- Changes to agreements concluded and deviations from these General Terms and Conditions after this realization are only valid if they have been agreed in writing between the User and the Contractor.
- The User is authorized to pass on increases to the Contractor as referred to in Article 3, paragraph 3, which occur within three months after the conclusion of the Agreement. If the user passes on such an increase within this period, the contractor is only authorized to dissolve the agreement if there is a total price increase of 10% or more of the total agreed purchase price.
- If the user has to spend more than 2 hours on preparatory work for the quotation or offer to be issued, or changes to already issued quotations or offers to the contractor, such as making (sketch) drawings and calculations, the user is entitled to invoice the Contractor for work and to charge the Contractor for reasonable costs of third parties to be engaged by the User on the basis of an hourly rate of 75.00 per hour excluding VAT.
- The right to terminate the contract as referred to in paragraph 5 does not apply if the passed-on increases in cost-determining factors are involved.
- If during the execution of the agreement it appears that for a proper execution of the agreement it is necessary to change and / or supplement the work to be performed, the parties will adjust the agreement accordingly in time and in mutual consultation.
- If the parties change and / or supplement the agreement, the time of completion of the execution may be affected. The user will inform the contractor of this as soon as possible.
- If the change and / or addition to the agreement has financial and / or qualitative consequences, the User will inform the Contractor in advance.
- If the user has to make new drawings, calculations, models and the like for a change in the agreement, the user will charge additional costs to the client.
- If a fixed price has been agreed, the user will indicate to what extent the change or addition to the agreement results in an overrun of the fixed price.
- In the event that the agreement referred to in this article comes into being with several contractors, they are in all cases jointly and severally liable towards the user if the obligations towards the user by one of the contracting parties are not or only partly fulfilled.
- If a natural person enters into an agreement on behalf or for the account of a legal person, he declares that he is authorized to do so by signing the contract. This person is jointly and severally liable, in addition to the legal entity, for all obligations arising from the agreement.
- If the user receives an oral additional contract from the contracting party or an employee or representative of the contractor present at the work and user has accepted the additional work or has not protested against the additional work during the execution of the work, then the user may assume that the additional work has been done at the explicit request of the Contractor at the prices, rates and conditions used by the User.
Article 5 (quality, description, responsibilities and order confirmation)
- The User shall make every effort to provide the Contractor with such goods or services as described in the order confirmation, this also applies to the quality and quantity to be delivered. What is included in the order confirmation sent by the user is decisive. The User is not obliged to reimburse any costs associated with the engagement of third parties by the Contractor for the checking of goods or services provided by the User, unless otherwise agreed between the parties.
- Contractor must notify any changes and / or additions to the sent order confirmation immediately, but no later than within 48 hours, after the day on which the order confirmation is sent by the user in writing to the user. When failing to do so the sent order confirmation shall serve as the basis for the obligation (s) of the User towards the Contractor as referred to in paragraph 1.
- Samples or models shown to the contractor shall only be provided by way of indication, without the goods to be delivered by the user having to comply with them.
- The contracting party may derive rights from the statements made by the user regarding (technical) product specifications, data as stated in brochures, catalogs or other information providing documents, unless the same information is included in the agreement or in the order confirmation referred to in paragraph 1, and explicitly stated the opposite.
- Slight deviations in the quality, color, execution, weight, size, quantity and such of the goods delivered by the user will not provide the contractor with the ground to terminate the contract (partial or otherwise) or to suspend its payment obligation, nor does this justify a reduction in the due purchase price.
- If the contractor makes material or parts available for further finishing, assembly or installation, then the user is only responsible for a proper finishing, assembly or installation, but never for the materials or parts themselves.
- User accepts no responsibility or liability for designs, sketches, diagrams and the like made by or on behalf of the contractor, nor for materials or parts that are explicitly prescribed by or on behalf of the contractor. Contractor will indemnify user on first request for claims from third parties on that basis, including claims on the grounds of intellectual property rights.
- The contracting party is obliged to provide the necessary or required cooperation immediately on the first request of the user, such that the user can fulfill its obligations arising from the agreement between the parties, explicitly including including the provision of free access on / in places or buildings in the broadest sense of the word.
- The user is, without prior consultation or approval by the contractor, required to have the contract realized in whole or in part or with the help of third parties engaged by him or to transfer its rights or obligations from the contract concluded with the contractor to a third party at all times.
- The User is not liable for damage resulting from death or bodily injury, any consequential damage or damage from any other reason that is related to the (unsoundness of the) materials or parts made available by or on behalf of the Contractor for further processing or assembly, regardless of processing or changing thereof by the user or third parties, unless there is intent or gross negligence of the user. The User is never liable for the confirmation methods applied by the Contractor in order to assemble and confirm the goods delivered by the User. In addition, the Contractor indemnifies the User against all claims for compensation for damage caused by contractor or third party personnel.
Article 6 (delivery times, delivery, supply and risk)
- The delivery periods specified by the user are not final deadlines. By the expiration of these periods, the user does not fall into default and the contracting party can not proceed to dissolve the agreement, nor to suspend the payment obligation. In the aforementioned cases, a prior and proper written notice of default is required, setting a minimum (recovery / delivery) term of 21 days. If a tailor-made product is contracted by the Contracting Party, the Contracting Party must, after written notice of default, record a minimum (recovery / delivery) period of 36 days.
- Delivery takes place from the warehouse of the user or of the third party (s) engaged by it, unless expressly agreed otherwise in writing.
- The delivery is deemed to have taken place at the moment that the items to be delivered are ready for the contractor in the stock / storage warehouse of the user or of the third party (s) engaged by the latter and this has been made known in writing or otherwise by the user.
- From the moment as referred to in paragraph 3, the delivered goods are deemed to be in the contractor's power and are at the expense and risk of the contractor.
- In the event that delivery does not take place in accordance with the provisions of paragraph 3 of this article, the goods will be delivered / delivered at the agreed place or places in the manner as determined in the quotation or order confirmation or subsequently agreed in writing between the parties. During the transport, the items to be delivered are not insured by the user and these items are already at the expense and risk of the contractor. The risk during transport must be insured by the contractor himself.
- In the event delivery takes place in accordance with the provisions of paragraph 5, the costs for delivery or delivery, including but not limited to the transport costs, are fully borne by the contractor and the provisions of the preceding paragraphs of this article shall apply mutatis mutandis.
- If, outside the situation as referred to in Article 8 paragraph 1, due to circumstances not to be attributed to the user, the goods can not be delivered or can not be delivered on time in accordance with the provisions of paragraph 5, the user is authorized to have these items stored or not stored with third parties at the expense and risk of the contractor.
- The User is entitled to deliver in parts (partial deliveries) and to invoice these separately to the Contractor, without the User being in default.
Article 7 (desire for securities and suspension)
- If there is reasonable doubt among the user regarding the payment capacity or solvency of the contractor, the user is entitled to suspend the delivery or delivery as referred to in Article 6 until the contractor has provided sufficient security for the fulfillment of his (payment) obligations to the user.
- Whether the certainties offered by the contractor as referred to in paragraph 1 is sufficient is at the discretion of the user. Contractor is liable for the damage suffered by the user through this delayed supply or delivery.
Article 8 (storage, suspension and retention right)
- If the contractor refuses to take delivery of the delivered goods or refuses to cooperate with the delivery thereof, the user is authorized to store these items on behalf of the contractor. The storage costs will be at least 2.50 / m2 / per day. The contractor will be informed of the storage in writing or otherwise by the user as soon as possible afterwards. Stored items as referred to in the first sentence shall be deemed to have been delivered or supplied to the contracting party and are at the risk of the contractor from the moment of storage. Payment for the storage costs must be made before the date on which the products are delivered again.
- If the user proceeds to apply the provisions in paragraph 1, both the invoice with regard to the storage costs and the invoice with regard to the supplied or delivered goods are immediately due and payable in full. For each day - after the notification referred to in paragraph 1 of this article has taken place - that the contracting party refuses to actually accept the waiting items, the contracting party is fined, in addition to the storage costs as mentioned in paragraph 1 of this article, a fine of 100.00 per day due to a maximum of 10,000.00. User is entitled to demand fulfillment of all payment or purchase obligations as well as the already due and payable penalty and costs, without prejudice to the user's right to additional compensation.
- The User is entitled to suspend his obligation to issue the stored items until the due and payable invoices and the due penalty and costs as referred to in paragraph 2 of this article have been paid in full by the Contractor and also until all due and payable claims of User on the basis of earlier or later concluded agreements, or on other grounds, all claims of the user due to non-compliance or non-compliance with the contract are expressly included.
- In the event that goods are offered for repair or maintenance to the user, the user is authorized to suspend the obligation to deliver these items until the due and payable invoices have been paid in full in respect of this work, and until everything has been fulfilled by the contracting party under previous or later concluded contracts or on any other grounds, all claims of the user due to non-compliance or improper performance of the contract are explicitly included.
- In the event that user on any other basis has contract goods in his possession, he is also entitled to suspend the obligation to issue these items until the contractor has fulfilled all due and payable claims that the user has against the contractor, whether or not by virtue of the provisions of this article.
- The right of retention accruing to user pursuant to this article shall also remain in force in the event that circumstances arise as referred to in Article 14, paragraph 2 of these terms and conditions.
- If the contractor otherwise, for whatever reason, in the fulfillment of his obligations towards the user or dealer in any way fails to comply with the conditions of the dealer, the user is also entitled to suspend the delivery of goods or exercise his right of retention in accordance with the provisions of the preceding paragraphs of this article. In addition, the user is entitled to terminate the agreement or (partially) terminate it.
Article 9 (force majeure / non-attributable shortcoming)
- The delivery time or agreed term referred to in Article 6 with regard to deliveries of goods as well as for the provision of other services by the user shall be extended by the period during which the user is prevented from fulfilling his obligations due to force majeure.
- Force majeure on the part of the user is the case if after the conclusion of the agreement as referred to in article 4 the user is prevented from complying with one or more obligations under the contract concluded or from the preparation thereof as a result of (both at home and abroad): war, danger of war, civil war, revolt, molestation, fire, water damage, flooding, vandalism, strike, occupancy, exclusion, import and export barriers, government measures, machine defects, energy supply failures, delay during transport , non-workable conditions, everything in the company of the user as well as third parties whose user must fully or partially involve the necessary materials or raw materials, as well as during storage or during transport, whether or not in-house, and further all other causes that have arisen outside the user's fault or risk sphere and facts and circumstances in which the user can not be expected to comply with his obligations.
- If, due to force majeure, delivery of goods or other services is delayed by more than two months, both the user and the contractor are authorized to regard the agreement as terminated, by means of a written termination statement addressed to the other party. The agreement is terminated at the moment that the written termination statement referred to in the second sentence has reached the other party. In that case, without prejudice to the provisions in the following paragraphs, the user is only entitled to the reimbursement of the costs incurred by him up to the moment at which the termination statement reaches the other party.
- In the event that the remaining items ordered by the user or the services to be delivered by the user are delayed by more than two months due to force majeure, the contracting party will nevertheless be obliged to pay the agreed fee (the related invoices) to the user.
Article 10 (warranty)
- Warranty on the delivered or executed work is only applicable if the parties have explicitly agreed this in writing.
- An agreed warranty is always limited to:
- manufacturing faults and therefore does not include damage as a result of improper, careless or incompetent use and maintenance by the contractor, including that the Cubiqz products are placed by the contractor in areas with a higher air humidity than 40-55%. If there is a higher degree of humidity, the user can no longer guarantee the quality;
- the obligations arising from the original assignment;
- deliveries to clients within the EU;
- the warranty given by the manufacturer;
- up to 1 month after delivery or after assembly / installation;
- to restore the case.
- The agreed warranty will lapse: If the goods and materials to be delivered do not comply with these guarantees, the user shall replace the goods within a reasonable period after receipt of the written notification regarding the defect by the contractor, at the discretion of the user, or arrange for repair. In case of replacement, the client already commits to return the replaced item to the user and to provide the property to the user
- upon resale of the delivered goods, unless the parties have expressly agreed otherwise;
- in case of changes, changes or repairs by a third party to or from the delivered goods;
- when used for a purpose other than that indicated by the user and the instructions for the use of the delivered goods by the user are not met.
- Slight deviations in the quality, color, design, weight, size and the like of the goods delivered by the user do not result in a product shortage
- As long as the contracting party does not fulfill his obligations arising from the agreements concluded by the parties, he can not invoke this warranty provision.
Article 11 (liability)
- Apart from his liability on the basis of the guarantee given in accordance with the provisions of article 10, the user is only liable for damage suffered by the contractor or third parties, which is directly and exclusively the result of intent or gross negligence of the user or his managerial subordinate(s) or of the third party(ies) engaged by him, with due observance of the following provisions.
- Compensation shall only be eligible for the damage against which the user is insured and only insofar as the insurance company proceeds to pay. If the insurer of the user does not proceed to payment, the liability of the user is limited to the net invoice amount stated in the order confirmation from the user to the contractor, with a maximum of € 5,000.00. The following restrictions and situations apply in which case there is in any case no intention or gross negligence as referred to in paragraph 1:
a) user is never liable for damage or defects to or caused by the goods delivered by him or arising from: the (inaccurate or otherwise) use, including the placing of Cubiqz products by the contractor in areas with a higher air humidity than 40-55%, or the possible unsuitability of those items themselves, as well as for the use of specific goods, materials, parts or constructions that may or may not be explicitly prescribed by or on behalf of the contracting party in deviation from the applicable regulations, or that have been made available to the user or to third parties engaged by them;
b) user is never liable for damage of the contracting party or third parties that, directly or indirectly, arises from the fact that the advice given orally or in writing by or on behalf of the user is not, not in time or improperly, followed by the contractor, his representative or third parties;
c) in the case of verbal information provided by or on behalf of the user, the user is never liable for the damage resulting from misunderstandings or incorrect information;
d) compensation is not eligible for so-called business or consequential loss (business interruption, other expenses, loss of income and the like), for whatever reason. The contractor must insure himself against this damage if desired;
e) the damage to be compensated by the user shall be moderated if the price or compensation to be paid by the contractor is small in relation to the extent of the damage suffered by the contractor.
- The contracting party is obliged to indemnify the user, as well as the third party(ies) engaged by him, against any claims from third parties for compensation of damage resulting from the use or application of the delivered goods or performance(s).
- If the contractor fails to fulfill one or more obligations arising from the agreement concluded with the user or these General Terms and Conditions, in time or properly, the contracting party is in default without further notice of default and fully liable for all damage suffered by the user and the third party(ies) engaged by the latter, without prejudice to the other rights and powers of the user pursuant to the Law or on the basis of these General Terms and Conditions.
Article 12 (complaints and inspection)
- Complaints are understood to mean: an appeal by the contractor to the fact that the goods delivered or services rendered by the user do not comply with the agreement that has been reached, including visible and non-immediately visible defects in the delivered goods.
- In the event of supply or delivery in accordance with the provisions of article 6, paragraph 5, the contracting party is obliged to check all supplied or delivered goods, including packaging, immediately upon supply or delivery for external shortcomings, damage and other visible defects and to check for non-directly visible defects as soon as possible afterwards, being within 48 hours of supply and delivery.
- If the supplied or delivered items as referred to in paragraph 2 must be installed or assembled by the user before they can be taken into use, the contractor is obliged to perform the check for the external / visible defects referred to in paragraph 2: immediately after the installation or assembly has been completed and to check these items as soon as possible for non-visible defects afterwards.
- In the event that delivery takes place in accordance with the provisions of Article 6, paragraph 3, the contracting party is obliged to carry out the checks referred to in paragraph 2 of this article within 24 hours after the user has sent a written or non-written notification as referred to in Article 8 paragraph 1 to the contractor.
- The contracting party is obliged to make any complaints in connection with the checks referred to in paragraphs 2 and 3 of this article with regard to visible defects known to the user, within 72 hours after supply, delivery or after completion of the installation or assembly in writing and with a clear description of the defects or complaints. The user no longer has to deal with complaints as referred to in the first sentence that are submitted after the 72-hour period has passed.
- With respect to non-(immediately) visible defects to the supplied or delivered goods, the contracting party must submit claims in writing to the user within 72 hours after these defects have been discovered by the contractor or should reasonably have been noticed by them. The provisions of the last sentence of paragraph 5 apply mutatis mutandis.
- Non-(immediately) visible defects as referred to in the previous paragraphs shall be understood as: defects as a result of construction, specification or design faults and errors that lead to the Contractor no longer being able to use the delivered goods for the purpose for which they were purchased. and which were not visible within the periods mentioned in paragraphs 2 to 5.
- Timely (and correctly) submitted complaints to the user do not give the contractor the right to suspend or settle the payment of the purchase price / fee, nor the power to fully or partially dissolve the contract. User must at all times be able to check submitted complaints. The items for which the complaint is filed must be left in the same state as at the time of discovery of the defect and sent to the user at the first request.
- If the user and the contractor have different opinions about whether the complaint was submitted in time and in the correct manner by the contractor to the user, this is initially submitted to an expert to be appointed by the user. The costs of engaging the expert are borne by the party who is unsuccessful (for the most part / predominantly).
- In the event that the advertisement is declared valid by the user or by the expert referred to in paragraph 9, the user shall only be obliged to supply substitute goods or comparable (new) services, or to credit the invoice subject to the refund of the purchase price, all of this at the discretion of the user. Return shipments are not permitted without prior user consent or do not oblige user to automatically replace, repair or credit.
- Any legal claims and defenses based on submitted complaints must be instituted under penalty of lapse of this right - within one year after the complaint is submitted or the expert has given his definitive / final opinion as referred to in paragraph 9. Article 11 will then apply mutatis mutandis.
Article 13 (payment)
- Unless the parties have expressly agreed otherwise in writing, COD delivery or (partial or full) prepayment takes place. In all other cases, payment shall take place no later than 8 days after the invoice date on a bank or giro account designated by the user, at the choice of the user.
- The contracting party is not entitled to deduct any amount from the payments due to a counterclaim made by him or to set off the amount.
- In the event that payment must be made in cash upon supply or delivery, the contracting party is in default, without any notice of default being required, from the first day following the day on which the supply or delivery took place. If the user has stored the goods in accordance with the provisions of article 8 paragraph 1, the contracting party is in default without notice of default from the day on which the user has sent the written notification regarding the storage.
- The payment by the contractor is only completed when the full amount that was owed has been credited to the bank or giro account designated by the user or if cash payment has been agreed at the moment that the full amount has been paid to the user (including costs charged by the user). Contractor is in default without a notice of default being required from the first day after the agreed or current payment term has expired.
- From the first day that the contracting party has been in default in accordance with the previous paragraphs in this article, it will owe contractual interest of the statutory commercial interest then applicable, with a minimum of 1.5% per month due on the amount due for supplied, delivered or stored items for each month or part thereof with which the due date is exceeded.
- If the contractor does not fulfill his payment or purchase obligations on time or in full and is in default on the basis thereof, the user is entitled to terminate the agreement without judicial intervention. In that case, the contractor is liable for the damage suffered by the user, including loss of profits and transport costs.
- If the user goes into out-of-court measures when the contractor goes into default, explicitly including summons, further reminders or collection measures taken by or on behalf of the user, the costs thereof will be borne by the contractor. The extrajudicial costs amount to at least 15% of the invoice amount with a minimum of 150.00.
- If the user makes judicial collection costs, the collection costs actually incurred by the user will be fully for the account of the contractor, including the costs of court fees and debt-collector.
- User always has the right - both before and after the conclusion of the agreement - to demand security for the payment from the contractor or to demand payment in advance. Article 7 applies mutatis mutandis.
Article 14 (retention of title)
- All items supplied or delivered or to be supplied or delivered remain the property of the user, until the contracting party has fully paid the agreed price and the other obligations arising under this article arising from agreements concluded earlier or later with the user.
- In the event that there is a default of the contractor under Article 13 or the contractor also fails to actually take delivery of the goods as referred to in article 6, the items will remain in ownership until the interest pursuant to Article 13, paragraph 5, has been paid in full or the fine or storage costs pursuant to article 8 paragraph 2 or extrajudicial costs have been paid in full pursuant to Article 13 paragraph 7.
- In the event that the user has also performed work to be compensated in the context of the concluded agreement, the supplied / delivered items remain the property of the user until the contractor (also) has paid all related and due and payable claims, including claims for non-compliance or improper performance.
- As long as the ownership has not yet been transferred to the contracting party in accordance with the foregoing paragraphs, it is not entitled to sell all or part of the goods delivered to it or to pledge them to third parties or otherwise encumber them with rights of third parties.
- From the moment that the contractor is in default pursuant to article 13 or the user has good reason to fear that he will be in default, the user is authorized to reclaim and collect the goods supplied / delivered to the contractor, without prior notice of default. The contracting party is obliged to return these items to him immediately on the first claim of the user and to provide the necessary / required cooperation, including explicitly providing free access on / in places or buildings in the broadest sense of the word. The costs related to this refund are entirely at the expense of the contractor. After the take-back of the items, the contractor will be credited for the market value, which in no case will be higher than the originally agreed price less the costs in connection with that take-back as well as the damage suffered by the user.
- If the contractor creates a new item from the items referred to in this article and obtains the full ownership of this item, or if there is a community in this new case and the contractor becomes a member thereof, the contractor shall be obliged to to grant a non-possessory (silent) right of pledge on that property on the first claim of the user, with due observance of the legal establishment requirements thereto as referred to in Section 6: 237 (1) Dutch Civil Code, to provide more certainty of all claims of the user against the contractor that are not covered by the retention of title on the grounds of this article. The costs for the realization of the right of pledge referred to in the first sentence shall be borne by the contracting party, unless explicitly agreed otherwise in writing.
- The provisions of paragraph 6 of this article shall apply mutatis mutandis to goods supplied / delivered that have been transferred to the contractor with due observance of the provisions of the preceding paragraphs of this article.
- As long as the ownership of the delivered / delivered goods has not yet passed to / on him but he has already obtained the actual power thereof pursuant to the provisions of article 6, the contracting party is obliged to ensure, during that period, that these items are delivered in the same state and quality as in which they were at the time of delivery or delivery, as well as to ensure that these items are and will remain individualisable in favor of the ownership of the user.
- The obligation referred to in paragraph 8 shall apply mutatis mutandis in the situation as referred to in article 8 paragraph 1, in the absence of which the contractor is obliged to compensate all damage resulting therefrom for the user.
- The contracting party is obliged to fully insure the supplied / delivered items as referred to in paragraph 8 of this article against fire, explosion and water damage as well as against theft and vandalism and to make the policies available to the user for inspection at first request, failure of which leads the contractor being obliged to compensate all damage resulting therefrom for the user.
- The contracting party is obliged to pledge all claims under the insurance policies referred to in paragraph 10 to the insurer, on the first claim of the user and all of this with due observance of the legal establishment requirements thereto as referred to in article 6: 239. Paragraph 1 of the Dutch Civil Code to provide more certainty of all claims from user to contractor, which are not covered by the retention of title on the basis of this article. The costs for the realization of the right of pledge referred to in the first sentence shall be borne by the contracting party, unless explicitly agreed otherwise in writing.
- The provisions of paragraph 11 of this article shall apply mutatis mutandis to claims of the contractor against one or more of its customers or other third parties.
Article 15 (property user)
- All goods, including materials and parts that the user or the third party(ies) engaged by the contractor, make(s) available to the contractor for the execution of the agreement, remain at all times the property of the user or the third party or parties. The user reserves the right at all times to take back these items, whereby the contractor is obliged to return the items to the user at his own expense.
- The contracting party must store the items referred to in paragraph 1 separately and mark them as being the property of the user or the third party or parties.
- The contracting party is not permitted to (let third parties) establish any security or other (limited or otherwise) rights on the items referred to in paragraph 1.
- The contracting party is not permitted to have the items referred to in paragraph 1 used by or for third parties, for or in connection with any other purpose than the execution of the agreement concluded between the user and the contracting party. The items referred to in paragraph 1 may only be used in accordance with the conditions or guidelines provided by the user for this purpose.
- The contracting party is obliged to inform the user of any actions or alleged rights of third parties on the items referred to in paragraph 1 without delay. The contracting party indemnifies the user against claims from third parties as referred to in the first sentence and is liable for all damage that the user suffers or may suffer as a result.
Article 16 (termination)
- If the contractor does not, not timely or not adequately fulfill his obligation that ensues for him on the basis of these General Terms and Conditions or the agreement concluded with the user, the user is entitled to terminate the agreement, or a part thereof that still has to be performed, without notice of default and without judicial intervention being required, partially or completely, and to take back the goods delivered by him, insofar as not yet paid. This, without prejudice to the user's right to compensation for loss, loss of profit and other damage that arises or will arise as a result of this shortcoming.
- The provisions of paragraph 1 shall apply mutatis mutandis in the event of: suspension of payments, the requesting or granting of a moratorium, bankruptcy or the application of the debt rescheduling scheme or liquidation of the business of the contractor or his death or if contractor loses possession of his assets through attachment or otherwise. If these circumstances arise, the contractor is obliged to notify the user in writing without delay.
- Furthermore, the user is authorized to terminate the agreement (or have it terminated) if circumstances arise which are of such a nature that compliance with the agreement is impossible or, according to standards of reasonableness and fairness, can no longer be required or if circumstances arise which are of such a nature that unaltered maintenance of the agreement can not reasonably be expected.
- In the cases referred to in paragraphs 1 and 2 of this article, every claim that the user has against the contractor shall be immediately and fully due and payable.
Article 17 (cancellation)
- Cancellation must be done by registered letter.
- Cancellation can only take place before the user has started to execute the agreement. Execution also means entering into agreements with third parties with regard to purchasing of goods and the hiring of persons and services.
- If the contracting party cancels the contract, the contracting party is obliged to pay a certain percentage of the agreed order price as cancellation costs to the user in accordance with the following regulation, without prejudice to the right to full compensation, including loss of profit: - In case of cancellation up to 6 weeks before the start of the execution agreement 10 %; - In case of cancellation up to 4 weeks before the start of the performance agreement 20%; - In case of cancellation up to 2 weeks before the start of the execution agreement 30%; - In case of cancellation less than 2 weeks before the start of the execution agreement 60%.
- If an hourly rate or part-time rate has been agreed, the user will determine in all fairness what is supposed to be regarded as the agreed price in the context of this cancellation scheme. For this purpose, the user must estimate how many hours or half-days would have been charged in the event of non-cancellation of the agreement;
- If the contracting party refuses to accept the purchase of items already purchased by the user, such as materials and the like, whether or not adjusted or processed, the contracting party is obliged to pay all resulting costs to the user.
Article 18 (privacy personal data and processing personal data)
- The Customer guarantees to Cubiqz and its suppliers that the parties involved in the data processing in the sense of the General Meeting of Shareholders have given permission for the intended processing of personal data, or that they can otherwise be lawfully processed as determined in art. 6 and / or 9 AVG. By concluding the agreement, Cubiqz is deemed to have been instructed to carry out those data processing operations that are reasonably required for the proper execution of the agreement. For the rest, Cubiqz will only process the personal data in accordance with the instructions of the Customer.
- By concluding the agreement, the employees of Cubiqz as well as third parties associated with Cubiqz that are involved in the implementation of the agreement are authorized to process the personal data in the context of the agreement on behalf of Cubiqz. In that context, Cubiqz will ensure appropriate confidentiality agreements with these employees and affiliated third parties.
- In its capacity as processor, Cubiqz will comply with the obligations arising from the relevant legislation and regulations, including the General Data Protection Regulation. More in particular, it will ensure that reasonable technical, organizational and legal measures are in place to protect the personal data. CUBIQZ will provide the Customer or any interested parties who request it at first request with regard to these measures with explanatory notes. Cubiqz will also provide all cooperation reasonably required of it in order to enable the customer to comply with its obligations arising from the AVG towards the parties involved.
- In the unlikely event of an infringement in connection with the personal data (data leak) within the meaning of the AVG, Cubiqz will provide all cooperation reasonably required of it in order to enable the Customer to comply with its duty to report. In its turn, the Customer will provide Cubiqz with all the cooperation that can reasonably be expected from him to limit or rectify the consequences of a data breach and to prevent a future data breach. In that context, Cubiqz can require the Customer to cooperate in an immediate reset of passwords, the tightening of existing security measures and the introduction of new security measures in any event.
- The Customer indemnifies Cubiqz against all third-party claims relating to the agreement between Cubiqz and the Customer and / or the data processed by the Customer in the context of the agreement that may be brought against Cubiqz due to a violation of the AVG and / or other relevant laws and regulations concerning data protection that can not be attributed to Cubiqz.
Article 19 (confidentiality)
- The parties are obliged to keep confidential all confidential information that they have received from each other or from another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information.
- If the user is obliged by virtue of a statutory provision or a court order to provide confidential information to the third parties appointed by law or the competent court, and the user can not rely on a right of correction recognized or permitted by the competent court, the user is not obliged to pay damages or compensation and the client is not entitled to terminate the agreement on the basis of any damage caused by this.
Article 20 (intellectual property, copyright)
- Without prejudice to the provisions in these general terms and conditions, the user reserves the rights and authorities which the user is entitled to by virtue of the intellectual property right and the Copyright Act. Any ideas, designs, sketches, advice, calculations, drawings, samples and models and the like or parts thereof that may be created by the user in the context of the agreement remain the property of the user, irrespective of whether they are available to the contracting party or to third parties. unless otherwise agreed. These may not be reproduced, made public or brought to the attention of third parties by the client without the prior consent of the user, unless the nature of the documents provided dictates otherwise. The user reserves the right to use the knowledge gained due to the execution of the work for other purposes, insofar as no confidential information is brought to the notice of third parties.
- The user is entitled to destroy a model, form or execution and to remove it from the market if it is outdated according to the user.
Article 21 (jurisdiction, applicable law and competent court)
- Only the Dutch judge has jurisdiction.
- Dutch law exclusively applies to agreements concluded between the user and the contractor. The disputes resulting from the concluded agreements will also be settled under Dutch law. Application of the Vienna Sales Convention is excluded on all legal relationships, in the broadest sense of the word, between the user and the contractor.
- The Dutch judge, including the Subdistrict Court, in the district of Almelo has exclusive jurisdiction to hear all disputes between the user and the contractor, unless explicitly otherwise and compellingly legally ensues from the law or international treaties.