Terms of service

Publication by Dutchlander, March 1, 2024
Moreheide 100-Z
5521 DX, Eersel
Netherlands

Article 1: Applicability

1.1.   These conditions apply to all offers made by Dutchlander, to all agreements concluded by him, and to all agreements that may result therefrom, insofar as Dutchlander is the provider or supplier.

1.2.  Dutchlander is referred to as the contractor. The counterparty is referred to as the client.

1.3. In the event of a conflict between the content of the agreement concluded between the client and the contractor and these conditions, the provisions of the agreement shall prevail.

Article 2: Offers

2.1.  All offers are without obligation.

2.2.   If the client provides data, drawings, and the like to the contractor, the contractor may assume the correctness and completeness thereof and will base his offer on this.

2.3.   The prices mentioned in the offer are based on delivery ex works, "ex works", contractor's place of business, in accordance with Incoterms 2010. Prices are exclusive of VAT and packaging.

2.4.   If the client does not accept the contractor's offer, the contractor has the right to charge the client for all costs incurred by him to make his offer to the client.

Article 3: Intellectual Property Rights

3.1.   Unless otherwise agreed in writing, the contractor retains the copyrights and all industrial property rights to the offers made by him, designs provided, images, drawings, (trial) models, software, and the like.

3.2.   The rights to the data referred to in paragraph 1 of this article remain the property of the contractor regardless of whether costs have been charged to the client for their preparation. These data may not be copied, used, or shown to third parties without the prior express written consent of the contractor. For each violation of this provision, the client owes the contractor a immediately due penalty of

• €25,000. This penalty can be claimed in addition to compensation under the law.

3.3.   The client must return the data provided to him as referred to in paragraph 1 of this article upon first request within a period set by the contractor. In the event of a breach of this provision, the client owes the contractor an immediately due penalty of € 1,000 per day. This penalty can be claimed in addition to compensation under the law.

Article 4: Advice and Provided Information

4.1.   The client cannot derive any rights from advice and information provided by the contractor if they do not relate to the assignment.

4.2.   If the client provides data, drawings, and the like to the contractor, the contractor may assume the correctness and completeness thereof in the execution of the agreement.

4.3.   The client indemnifies the contractor against any claims from third parties relating to the use of advice, drawings, calculations, designs, materials, samples, models, and the like provided by or on behalf of the client.

Article 5: Delivery Time / Execution Period

5.1.   The delivery time and/or execution period are approximately determined by the contractor.

5.2.   In determining the delivery time and/or execution period, the contractor assumes that he can execute the assignment under the conditions known to him at that time.

5.3.   The delivery time and/or execution period commence only when agreement has been reached on all commercial and technical details, all necessary data, final and approved drawings, and the like are in the possession of the contractor, the agreed (instalment) payment has been received, and the necessary conditions for the execution of the assignment have been met.

5.4.   a. If there are circumstances other than those known to the contractor when he determined the delivery time and/or execution period, he may extend the delivery time and/or execution period by the time needed to execute the assignment under these circumstances. If the work cannot be accommodated in the contractor's schedule, it will be performed as soon as his schedule allows.

1. If there is additional work, the delivery time and/or execution period will be extended by the time the contractor needs to supply the materials and parts for it and to carry out the additional work. If the additional work cannot be accommodated in the contractor's schedule, the work will be performed as soon as his schedule allows.
2. If there is a suspension of obligations by the contractor, the delivery time and/or execution period will be extended by the duration of the suspension. If continuation of the work cannot be accommodated in the contractor's schedule, the work will be performed as soon as his schedule allows.
3. If there is inclement weather, the delivery time and/or execution period will be extended by the resulting delay.

5.5.   The client is obliged to pay all costs incurred by the contractor as a result of a delay in the delivery time and/or execution period as stated in 4 of this article.

5.6.  Exceeding the delivery time and/or execution period does not entitle to compensation or dissolution.

Article 6: Transfer of Risk

6.1.   Delivery takes place ex works, "ex works", contractor's place of business, in accordance with Incoterms 2010. The risk of the goods passes to the client at the moment the contractor makes them available to the client.

6.2.   Regardless of the provisions of 1 of this article, the client and the contractor may agree that the contractor will arrange for transportation. In that case, the risk of storage, loading, transportation, and unloading rests with the client. The client can insure against these risks.

6.3.   If there is a trade-in and the client keeps the item to be traded-in pending delivery of the new item, the risk of the item to be traded-in remains with the client until he has made it available to the contractor. If the client cannot deliver the item to be traded-in in the condition it was in when the agreement was concluded, the contractor may terminate the agreement.

Article 7: Price Change

7.1.   The contractor may pass on an increase in cost-determining factors that has occurred after the conclusion of the agreement to the client.

7.2.   The client is obliged to pay the price increase as referred to in 1 of this article at the choice of the contractor at one of the following moments:

1. if the price increase occurs;
2. together with payment of the principal sum;
3. at the next agreed payment term.

Article 8: Force Majeure

8.1.   The contractor has the right to suspend the performance of his obligations if he is temporarily prevented from fulfilling his contractual obligations towards the client due to force majeure.

8.2.   Force majeure includes, among other things, the circumstance that suppliers, subcontractors of the contractor, or transporters engaged by the contractor do not or do not timely fulfill their obligations, weather conditions, earthquakes, fire, power failure, loss, theft or loss of tools or materials, roadblocks, strikes or work stoppages, and import or trade restrictions.

8.3.   The contractor is no longer entitled to suspend if the temporary impossibility of performance has lasted more than six months. After this period, the client and the contractor can terminate the agreement immediately, but only for that part of the obligations that has not yet been fulfilled.

8.4.   If there is force majeure and performance becomes permanently impossible or is impossible, both parties are entitled to terminate the agreement immediately for that part of the obligations that has not yet been fulfilled.

8.5.   Parties are not entitled to compensation for damages suffered or to be suffered as a result of the suspension or termination referred to in this article.

Article 9: Scope of Work

9.1.   The client must ensure that all permits, exemptions, and other decisions necessary to carry out the work are obtained in a timely manner. The client is obliged to send a copy of the aforementioned documents to the contractor at his first request.

9.2.   The following costs are not included in the price of the work:

1. the costs for ground, pile, excavation, demolition, foundation, bricklaying, carpentry, plastering, painting, wallpapering, repair work, or other construction work;
2. the costs for connection of gas, water, electricity, or other infrastructure facilities;
3. the costs to prevent or limit damage to or near the work;
4. the costs for the removal of materials, building materials, or waste;
5. travel and accommodation expenses.

Article 10: Changes in the Work

10.1. Changes in the work result in additional or reduced work in any case if:

1. there is a change in the design, specifications, or specifications;
2. the information provided by the client does not correspond to reality;
3. estimated quantities deviate by more than 10%.

10.2. Additional work is calculated based on the price-determining factors applicable at the time the additional work is performed. Reduced work is settled based on the price-determining factors applicable at the time of the conclusion of the agreement.

10.3. The client is obliged to pay the price of the additional work as referred to in 1 of this article at the choice of the contractor at one of the following moments:

1. if the additional work occurs;
2. together with payment of the principal sum;
3. at the next agreed payment term.

10.4. If the sum of the reduced work exceeds that of the additional work, the contractor may charge the client 10% of the difference in the final settlement. This provision does not apply to reduced work resulting from a request by the contractor.

Article 11: Execution of the Work

11.1. The client ensures that the contractor can carry out his activities undisturbed and at the agreed time and that he has access to the necessary facilities during the execution of his activities, such as:

1. gas, water, and electricity;
2. heating;
3. lockable dry storage space;
4. facilities prescribed under the Occupational Health and Safety Act and regulations.

11.2. The client bears the risk and is liable for damage in connection with loss, theft, burning, and damage to items of the contractor, client, and third parties, such as tools, materials intended for the work, or equipment used in the work, located at the place where the work is carried out or at another agreed place.

11.3. The client is obliged to adequately insure against the risks mentioned in 2 of this article. In addition, the client must ensure insurance for the work risk of the equipment to be used. Upon the first request of the contractor, the client must send the contractor a copy of the relevant insurance(s) and proof of payment of the premium. In the event of damage, the client is obliged to report this immediately to his insurer for further handling and settlement.

11.4. If the client fails to fulfill his obligations as described in the preceding paragraphs of this article, resulting in a delay in the execution of the work, the work will be carried out as soon as the client fulfills all his obligations and the contractor's schedule allows it. The client is liable for all damages resulting from the delay to the contractor.

Article 12: Completion of the Work

12.1. The work is considered completed in the following cases:

1. if the client has approved the work;
2. if the client has put the work into use. If the client puts part of the work into use, that part is considered completed;
3. if the contractor has notified the client in writing that the work has been completed and the client has not notified in writing within 14 days after the notification whether the work has been approved or not;
4. if the client does not approve the work due to minor defects or missing parts that can be repaired or supplied within 30 days and do not prevent the use of the work.

12.2. If the client does not approve the work, he is obliged to notify the contractor in writing stating the reasons. The client must allow the contractor the opportunity to complete the work.

12.3. The client indemnifies the contractor against claims from third parties for damage to parts of the work that have not been delivered caused by the use of already delivered parts of the work.

Article 13: Liability

13.1. In case of an attributable failure, the contractor is obliged to fulfill his contractual obligations.

13.2. The obligation to pay damages by the contractor on any legal basis whatsoever is limited to the damage for which the contractor is insured under an insurance policy taken out by or on his behalf, but is never higher than the amount that is paid out under this insurance policy in the relevant case.

13.3. If, for whatever reason, the contractor is not entitled to invoke the limitation of 2 of this article, the obligation to pay damages is limited to a maximum of 15% of the total contract sum (exclusive of VAT). If the agreement consists of parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (exclusive of VAT) of the contract sum for that part or partial delivery.

13.4. Not eligible for compensation are:

1. consequential damage. Consequential damage includes, among other things, stagnation damage, loss of production, loss of profit, transport costs, and travel and accommodation costs. If possible, the client can insure against this damage;
2. supervision damage. Supervision damage includes damage caused during the execution of the work to items being worked on or items located near the place where the work is being carried out. If desired, the client can insure against this damage;
3. damage caused by intent or conscious recklessness of assistants or non-managerial subordinates of the contractor.

13.5. The contractor is not liable for damage to material supplied by or on behalf of the client as a result of improperly executed processing.

13.6. The client indemnifies the contractor against all claims from third parties for product liability as a result of a defect in a product supplied by the client to a third party and that (partly) consisted of products and/or materials supplied by the contractor. The client is obliged to compensate all damage suffered by the contractor in this respect, including the (full) costs of defense.

Article 14: Warranty and other claims

14.1. Unless otherwise agreed in writing, the contractor guarantees the proper execution of the agreed performance for a period of six months after delivery. If a different warranty period has been agreed upon, the other provisions of this article also apply.

14.2. If the agreed performance has been inadequate, the contractor will choose whether to rectify it properly or credit the client for a proportionate part of the invoice. If the contractor chooses to rectify the performance, they determine the manner and timing of execution. If the agreed performance included processing materials provided by the client, the client must provide new materials at their own expense and risk.

14.3. Parts or materials repaired or replaced by the contractor must be sent to them by the client.

14.4. The following are at the client's expense:

1. all transportation or shipping costs;
2. costs for disassembly and assembly;
3. travel and accommodation costs.

14.5. In all cases, the client must provide the contractor the opportunity to rectify any defects or redo the processing.

14.6. The client can only claim warranty after fulfilling all obligations towards the contractor.

14.7. a. No warranty is given if defects result from:

• normal wear and tear;
• improper use;
• failure to perform or improper maintenance;
• installation, assembly, modification, or repair by the client or third parties;
• defects in or unsuitability of items provided by or prescribed by the client;
• defects in or unsuitability of materials or tools used by the client.

1. No warranty is given for:

• delivered items that were not new at the time of delivery;
• inspection and repair of client's items;
• parts covered by manufacturer's warranty.

14.8. The provisions of paragraphs 2 through 7 of this article apply mutatis mutandis to any claims by the client based on breach of contract, non-conformity, or any other basis.

14.9. The client cannot transfer rights under this article.

Article 15: Obligation to complain

15.1. The client cannot invoke a defect in the performance if they have not complained about it to the contractor in writing within fourteen days of discovering or should reasonably have discovered the defect.

15.2. The client must submit complaints about the invoice amount within the payment term, failing which all rights expire. If the payment term exceeds thirty days, the client must lodge a complaint in writing no later than thirty days after the invoice date.

Article 16: Non-taken goods

16.1. After the delivery period and/or execution period has expired, the client is obliged to accept the goods subject to the agreement at the agreed location.

16.2. The client must provide all reasonable assistance to enable the contractor to make delivery.

16.3. Non-accepted goods are stored at the expense and risk of the client.

16.4. If the provisions of paragraphs 1 and/or 2 of this article are violated, the client owes the contractor a penalty of €250 per day, with a maximum of €25,000. This penalty can be claimed in addition to damages under the law.

Article 17: Payment

17.1. Payment is made at the contractor's place of business or to an account designated by the contractor.

17.2. Unless otherwise agreed, payment is made as follows:

1. cash in case of counter sales;
2. at the time of ordering in case of website sales;
3. in installments:
   1. 50% of the total price upon order;
   2. 40% of the total price after the delivery of materials or, if the supply of materials is not included in the order, upon commencement of work;
   3. 10% of the total price upon delivery;
   4. Unless otherwise agreed;
4. in all other cases within thirty days after the invoice date.

17.3. If the client fails to fulfill their payment obligation, they are obliged to comply with a request from the contractor for consignment instead of payment of the agreed amount.

17.4. The client's right to set off or suspend their claims against the contractor is excluded, unless the contractor is declared bankrupt or statutory debt restructuring applies to the contractor.

17.5. Regardless of whether the contractor has fully performed the agreed performance, all amounts owed or to be owed by the client under the agreement become immediately due and payable if:

1. a payment term is exceeded;
2. bankruptcy or suspension of payments of the client is requested;
3. seizure is made on the client's assets or claims;
4. the client (company) is dissolved or liquidated;
5. the client (natural person) applies for admission to statutory debt restructuring, is placed under guardianship, or has died.

17.6. If payment is not made within the agreed payment term, the client owes interest to the contractor immediately. The interest rate is 12% per year, but equals the statutory interest rate if it is higher. A part of a month is considered a full month for interest calculation.

17.7. The contractor is authorized to set off their debts to the client against claims of affiliated companies of the contractor against the client. Additionally, the contractor is authorized to set off their claims against the client against debts of affiliated companies of the contractor to the client. Furthermore, the contractor is authorized to set off their debts to the client against claims against affiliated companies of the client. Affiliated companies are understood to mean companies belonging to the same group within the meaning of Article 2:24b of the Dutch Civil Code and a participation within the meaning of Article 2:24c of the Dutch Civil Code.

17.8. If payment is not made within the agreed payment term, the client owes the contractor all extrajudicial costs with a minimum of €75.

These costs are calculated based on the following table (principal sum incl. interest):

on the first	€	3,000,-	15%
on the excess up to	€	6,000,-	10%
on the excess up to	€	15,000,-	8%
on the excess up to	€	60,000,-	5%
on the excess from	€	60,000,-	3%

The actual extrajudicial costs incurred are owed if they exceed the calculation above.

17.9. If the contractor is successful in a legal proceeding, all costs incurred by the contractor in connection with this proceeding are borne by the client.

Article 18: Securities

18.1. Regardless of the agreed payment terms, the client must, at the first request of the contractor, provide sufficient security for payment. If the client fails to do so within the specified period, they are immediately in default. In that case, the contractor has the right to terminate the agreement and recover damages from the client.

18.2. The contractor remains the owner of the delivered goods as long as the client:

1. fails or will fail to fulfill their obligations under this or other agreements;
2. has not paid claims arising from the non-fulfillment of the aforementioned agreements, such as damages, penalties, interest, and costs.

18.3. As long as there is a retention of title on delivered goods, the client may not encumber or dispose of these goods outside their normal business activities.

18.4. After the contractor has invoked their retention of title, they may reclaim the delivered goods. The client shall cooperate fully.

18.5. The contractor has a right of pledge and retention on all goods held by them or to be received by them for any claims they have or may have against the client or anyone requesting delivery thereof.

18.6. If, after the goods have been delivered by the contractor to the client in accordance with the agreement, the client has fulfilled their obligations, the retention of title with respect to these goods revives if the client fails to fulfill their obligations under a subsequently concluded agreement.

Article 19: Termination of the agreement

If the client wishes to terminate the agreement without any default by the contractor and the contractor agrees, the agreement is terminated by mutual consent. In this case, the contractor is entitled to compensation for all pecuniary damages such as loss suffered, lost profits, and costs incurred.

Article 20: Applicable law and competent court

20.1. Dutch law applies.

20.2. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply, nor does any other international regulation whose exclusion is permitted.

20.3. Only the Dutch civil court with jurisdiction in the contractor's place of business shall have jurisdiction over disputes, unless this is contrary to mandatory law. The contractor may deviate from this jurisdictional rule and apply the statutory jurisdiction rules.