GENERAL TERMS AND CONDITIONS OF DELIVERY of the private company with limited liability Van Tienen Milieuadvies B.V., also trading under the name of Customs Support Safety, with its registered office in (5915 PN) Venlo, at the address Huiskensstraat 56, registered in the trade register of the Netherlands Chamber of Commerce under number 14127542, hereinafter referred to as “CSS”. (version January 2021).
Article 1. Definitions
- In these Conditions, “Counterparty” shall mean every natural person or legal entity on whose instructions CSS carries out Services, with whom CSS enters into an agreement or with whom CSS is negotiating about the conclusion of an agreement, and/or its representative.
- In these conditions, “Agreement” shall mean every agreement between CSS and the counterparty, any amendment or addition to it, as well as all legal acts performed in preparation for and in implementation of that agreement.
- In these conditions, “Services” shall mean any work, in any form and in any way carried out by CSS for or on behalf of the Counterparty.
Article 2. Applicability
- These Conditions are applicable to any legal relationship between CSS, including its directors, and the Counterparty, covering all Services CSS carries out for or in favor of the Counterparty, whether or not remunerated. The Services include, but is not limited to, the following:
- Performing measurements;
- Providing advice;
- The removal of waste;
- The sale and delivery of goods and all other Services CSS provides.
- These Conditions are also applicable to non-contractual legal relationships.
- Any general terms and conditions of the Counterparty and/or third parties shall not be binding upon CSS. Any applicability thereof is hereby explicitly rejected.
- Deviations from these Conditions shall only be binding if they are accepted in writing by CSS, if they are set out in the Agreement between the parties and if they shall only apply to the Agreement to which such deviations relate unless such deviation is expressly confirmed in writing in a subsequent agreement.
- All provisions stipulated in these Conditions and in any further agreements on behalf of CSS shall also be stipulated on behalf of CSS' employees, shareholders and directors as well as subcontractors, intermediaries and other third parties engaged by CSS who may invoke the Agreement and the Conditions.
- These Conditions also apply to future agreements with the Counterparty, unless parties explicitly agree in writing that the Conditions shall not apply.
- In the event that specific provisions of these Conditions are void, voidable or otherwise non-binding due to conflict with any provision of mandatory law, the remaining provisions shall continue to apply. In this case, CSS and the Counterparty shall consult each other in order to agree upon a substitute provision, the basic principle of which shall be that the content and scope of the provision to be substituted shall be approximated as far as possible. The same shall apply to provisions which CSS could not invoke for other reasons.
- When assigning Services, the parties explicitly intend not to enter into an employment agreement with CSS or CSS employees as referred to in article 7:610 DCC.
- All CSS' quotations and offers are not binding. CSS shall not be obliged to enter into an agreement merely because it has issued a quotation, estimate, pre-calculation or similar information.
- An Agreement between CSS and the Counterparty shall only be concluded and binding upon CSS, after written confirmation of CSS or when CSS executes the agreement.
- In case of reservations or changes in the acceptance of the Counterparty in relation to the offer, the agreement shall, in deviation from the provisions of the previous paragraph, only be concluded if and as soon as CSS has confirmed and agreed to these changes to the Counterparty in writing. CSS' agreement shall however never be deemed to relate to the possible applicability of general terms and conditions used by the Counterparty.
- Legal transactions, announcements and such of the Counterparty with employees of CSS shall not be binding on CSS unless CSS has expressly agreed to such legal transactions, announcements and such in writing. Only CSS shall be entitled to invoke this provision.
- No rights can be derived from the price quoted in any price list, catalogue or other documentation issued with the offer.
Article 4. Prices and Charges
- Unless explicitly agreed otherwise, the prices are:
- based on the level of (purchase) prices, wages, labour costs, special and governmental charges, insurance premiums and other costs applicable on the date of offer
- exclusive of VAT and other government levies;
- stated in euros.
- CSS is entitled to increase the quoted or agreed price if cost-determining factors occur after the conclusion of the Agreement, including – but not limited to – increase of exchange rates, increase of the costs of materials, fuels, semi-manufactured products or Services required to execute the Agreement, increase of transport costs, dumping and processing rates, wages, employers contributions, social insurance, costs relating to other terms of employment, introduction of new and/or increase in existing government levies, import and export duties or other levies and/or taxes at home and abroad, or, in general, circumstances similar to these.
- The price in the Agreement shall be based on normal working hours and duration in accordance with the provisions of the applicable Collective Labour Agreement and other employment conditions. CSS is entitled to proportionally increase the price in case of entitlement to a special bonus (e.g. overtime) pursuant to these conditions of employment.
- CSS shall be entitled to deviate from the technical data, dimensions, capacities, etc. provided insofar as such deviation is of minor importance. Deviations of 10% or less in the total Services and deviations which, taking all circumstances into account, have no or only minor influence on the value of the Services shall be deemed to be deviations of minor importance.
- If additional costs are incurred and/or additional risks are involved in the execution of the Agreement, e.g. dangerous locations, obstacles or factors delaying the execution, CSS shall be entitled to charge a surcharge on the agreed prices in proportion to such risks and costs.
Article 5. Rates/prices
- Prices and/or rates shall be agreed for all activities and goods in accordance with these Conditions, in the absence of which CSS shall charge the prices and rates customary in the industry, unless the price conventionally charged in the industry is higher (in which case this latter price shall apply).
- Prices and rates previously agreed or charged shall not be binding on CSS unless they are confirmed in a subsequent agreement.
Article 6. Payment and guarantees
- The Counterparty shall pay the invoice (and all other payments) without deduction of any discount or compensation within (30) thirty days of the invoice date (or such other term as may be agreed) to the bank account specified by CSS. In case of electronic payments, the date of payment shall be the date the payment has been received on CSS' bank account.
- If the payment deadline referred to in paragraph 1 is exceeded, the Counterparty shall be liable for a contractual interest of 12% per year from the day payment was due, without the need to give notice of default. If the statutory commercial interest rate is higher than the contractual interest rate in a certain period, the statutory commercial interest rate shall apply instead of the contractual interest rate for that period.
- The Counterparty shall bear all judicial and extrajudicial costs reasonably incurred by CSS as a result of the Counterparty's failure to fulfil its payment obligations (or failure to do so in good time). The extrajudicial costs are fixed at 15% of the invoice amount with a minimum of EUR 500.
- In the event that the Counterparty fails to make any payment due to CSS, CSS shall be entitled to suspend the execution of the Agreement and all agreements relating to it or to dissolve it without CSS being liable for any compensation.
- The Counterparty shall not be entitled to set off its own (alleged) claim against CSS of any kind against the CSS payment claim against the Counterparty or to postpone the obligation to pay the CSS payment claim against the Counterparty due to its (alleged) own claim. The Counterparty shall also not be allowed to levy prejudgment attachments for (alleged) claims against CSS.
- CSS shall be entitled to demand sufficient guarantee for the fulfilment of the Counterparty's payment obligations before commencing execution of the Agreement or continuing with the Agreement. In case of any default, the Counterparty shall be obliged to provide, at CSS's discretion, adequate guarantee, including pawn, for the fulfilment of the payment obligations. The guarantee offered shall be of such extent that the claim together with interest and costs due are properly covered. The Counterparty shall be obliged to fulfil its payment obligations in any other way in the event of default. CSS shall at all times be entitled to refuse the method of payment referred to in the previous sentence. The costs of the guarantee and other means of payment shall be for account of the Counterparty. Furthermore, costs and damages incurred by CSS due to the suspension of its activities shall be for account of the Counterparty.
- In the event of liquidation, insolvency, (application for) bankruptcy or (application for) a moratorium, attachment at the expense of the Counterparty, application of the statutory debt rescheduling arrangement or any other circumstance due to which the Counterparty can no longer dispose of its assets, the Counterparty's obligations shall become immediately due and payable. In such cases, CSS shall also be entitled to terminate the legal relationship with the Counterparty with immediate effect, without prejudice to CSS' right to compensation.
- Payments made by the Counterparty shall first settle all interest and costs due and subsequently the longest outstanding payable invoices, even if the Counterparty states that the payment relates to another invoice.
- If a payment discount has been agreed, it shall only be applicable if the Counterparty has complied with the conditions stipulated in this regard and has also strictly fulfilled all its other obligations (for payment) arising from the Agreement with CSS.
- CSS shall have the right to retain goods, documents and funds for the account and risk of the Counterparty and/or interested party until all claims which CSS has against the Counterparty have been settled or until the Counterparty has provided a proper guarantee. CSS shall have a lien on all goods, documents and funds which it has or will have in its possession, for any reason whatsoever, for all claims arising from its operations or otherwise. If payment is not made or a guarantee is not provided within the agreed period, CSS shall have the right to sell the goods and documents in pawn without the need for prior permission. CSS shall be entitled at all times to set off any debts against the money in its possession or that will accrue to it.
- CSS shall have a right of retention on any goods made available by the Counterparty under any name.
Article 7. Execution of the Agreement
- CSS shall execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good professional practice, taking into account the known state of the art. CSS shall ensure that the Agreement is executed by competent persons and shall use the appropriate equipment.
- CSS shall not be responsible in case instructions and recommendations of CSS are not followed by the Counterparty or by subordinate and non-subordinate assistants of the other party.
- If it has been agreed that the Agreement shall be executed in phases, CSS may suspend execution of the parts belonging to a subsequent phase until the Counterparty has approved in writing the results of the preceding phase.
- CSS shall be dependent on the accuracy and completeness of the instructions given by the Counterparty and the information and data supplied in order to properly carry out CSS's orders.
- The Counterparty guarantees the correctness, completeness and reliability of the order, data and information given to CSS by him or on his behalf. CSS shall not be liable for damage of any kind resulting from the fact that it relied on incorrect and/or incomplete information provided by the Counterparty, unless this incorrectness or incompleteness should have been known to it at the time the order was given.
- In case of disagreement between CSS and the Counterparty as to whether CSS has executed the order correctly, the burden of proof with regard to the content of the given order and the completeness and correctness of the information and data provided by the Counterparty within this framework shall lie with the Counterparty.
- The Counterparty shall ensure that CSS shall be provided in good time with all information which CSS indicates is necessary or which the Counterparty should reasonably understand is necessary for the execution of the Agreement. If CSS has not been provided in due time with the information necessary for the execution of the Agreement, CSS shall be entitled to suspend execution of the Agreement and/or to charge the Counterparty for the additional costs resulting from the delay according to the customary rates.
- The Counterparty shall inform CSS without delay of any facts and circumstances which may be relevant to the execution of the Agreement.
- CSS is permitted to engage third parties for the purpose of the Services or other activities and to accept (general) conditions of these third parties. The Counterparty agrees to let such conditions apply against it.
Article 8. Time of commencement and deadlines
- The commencement of the Services and the period of completion within which the order must be executed by CSS shall be determined by CSS and the Counterparty.
- Deadlines within which the Agreement and/or Services must be completed - even if a specific completion date or deadline has been agreed - shall be deemed to be indicative and shall not be binding unless CSS and the Counterparty have expressly agreed otherwise in writing.
- Unless it is established that performance is permanently impossible, the Agreement cannot be dissolved by the Counterparty on account of failure to meet the deadline unless CSS fails to meet the obligations of the Agreement even after giving proper notice of default and a reasonable period.
- The time limit shall be extended by the period during which execution of the Agreement is obstructed by the actions of the Counterparty.
Article 9. Changes to contracted Services (additional or less work) and cost-increasing circumstances
- The provisions of this article shall apply to Services contracted by CSS at an agreed total price for the whole of the Services.
- CSS shall be entitled to change the agreed performance if CSS deems this necessary under the circumstances to ensure the proper execution of the Services.
- If the change referred to in paragraph 2 results in additional Services, this shall be deemed to be cost-increasing circumstances as referred to in paragraph 4 and following of this article.
- In this article, cost-increasing circumstances shall be understood to mean: circumstances of such a nature that the likelihood of their occurrence should not have been taken into account when the Agreement was concluded, or which cannot be attributed to CSS, or which considerably increase the cost of the Services.
- In the event that cost-increasing circumstances as referred to in paragraph 4 arise, CSS shall be entitled to an additional payment subject to the provisions of the following paragraphs.
- CSS shall inform the Counterparty if it is of the opinion that cost-increasing circumstances have occurred. The Counterparty shall in such case consult CSS at short notice on the extent to which the cost increase shall be reasonably compensated. If the Counterparty does not enter into such consultation, it shall be deemed to have agreed to compensation of the increased costs.
- Contrary to article 7:1646 of the Dutch Civil Code, changes as referred to in paragraph 2 and the charging of cost-increasing circumstances do not require the written consent of the Counterparty.
- Instead of agreeing to compensation as referred to in Paragraph 6, the Counterparty is only entitled to limit, simplify or terminate the Services, after which the amount due by the Counterparty shall be determined by CSS in accordance with standards of reasonableness and fairness.
Article 10. Claims
- The Counterparty shall examine whether CSS has fulfilled the Agreement with due diligence after delivery. Visible defects shall be notified to CSS in writing within 24 hours of delivery, stating the reasons for the defect and giving the clearest possible description of the defect. The Counterparty shall notify CSS of complaints concerning defects which are not noticeable at the time of delivery immediately in writing after they are discovered or should reasonably have been discovered, but at the latest within eight (8) calendar days after delivery.
- CSS shall be entitled at all times to substitute a new proper performance for a previous faulty one (unless the (alleged) fault is irreparable). Performance of the Agreement shall be deemed to be fully sound. In this case the Agreement cannot be dissolved by the Counterparty.
- CSS shall be deemed to have fully complied with the Agreement if the Counterparty fails to carry out the examination referred to in paragraph 1 of this article or to inform CSS of the result of the examination in good time.
- CSS's invoice shall be deemed to be correct if the Counterparty does not object in writing to CSS within (8) eight calendar days of the invoice date.
- The CSS invoice shall be deemed to be a complete record of transactions for which no quotation, confirmation of order or written agreement has been made with regard to their nature or scope unless a written objection is made within eight (8) calendar days of the invoice date and the nature and grounds for the objection are precisely stated.
- CSS shall have the opportunity to examine the justification of the complaint. If CSS considers the complaint to be well-founded, CSS shall repair or replace the goods delivered, at its discretion, or credit the price or reimburse the difference in value between a proper performance and the one actually delivered. CSS shall not be liable for any delay in the delivery of substitute products or Services which may result from this.
- In case the time limits mentioned in this article are considered unacceptably short according to standards of reasonableness and fairness even for a careful and alert the Counterparty, this time limit shall be extended at the latest until the first moment when the examination or the notification of CSS is reasonably possible for the Counterparty.
- Any right to compensation for damage, repair or replacement of goods delivered, delivery of missing goods for any reason whatsoever as well as any right to dissolve the Agreement shall lapse if CSS is not notified in due time but at least (6) six calendar months after delivery or completion of the service.
- CSS shall be deemed to have performed properly if the Counterparty has put the delivered goods or part thereof to use, has treated or processed them, has supplied them to third parties, has had them treated or processed or supplied them to third parties, unless the Counterparty has complied with the provisions of paragraph 1 of this article and has not put the delivered goods or part thereof to use, has not treated or processed them, has not supplied them to third parties, has not had them treated or processed or supplied them to third parties.
Article 11. Force majeure
- CSS is entitled to suspend the Services in the event of force majeure. CSS shall never be liable for the consequences of force majeure and/or such suspension of activities.
- Circumstances beyond CSS' control shall be all circumstances which CSS could not reasonably avoid and the consequences of which CSS could not prevent. These include, but are not limited to, conduct, including deliberate misconduct or gross negligence, of persons or third parties whose services CSS uses in the execution of the Agreement, extreme and/or unsuitable weather conditions, illness of employees, fire, explosion, riot, extreme or unexpected traffic stoppages, obstruction of the transport route, breakdowns in CSS's business or in that of one of its suppliers or third parties involved in the execution of the Agreement, breakdowns in the machinery used by CSS or third parties involved, any shortcoming of suppliers or third parties involved, delayed delivery of parts, government measures, as well as any delay and under-capacity at CSS caused by delays in other activities of CSS arising from the aforementioned circumstances.
- CSS shall also be entitled to invoke force majeure if the circumstance which prevents (further) CSS performance occurs after CSS should have fulfilled its commitment.
- CSS shall suspend its obligations during the period of force majeure. If the period of force majeure lasts longer than one week, CSS is authorised to dissolve the Agreement without any obligation to pay compensation. Dissolution shall take place by means of a written statement.
- If CSS has already fulfilled part of its obligations when the force majeure occurs or can only partially fulfil its obligations, it shall be entitled to separately invoice the part already delivered or the part which can be delivered and the Counterparty shall be obliged to pay this invoice as if it were a separate contract. However, this does not apply if the part already delivered or deliverable has no independent value.
Article 12. Liability
- All acts and activities shall take place at the expense and risk of the Counterparty.
- CSS shall not be liable for any damage suffered by the Counterparty unless it proves that damage is exclusively the direct consequence of intent or deliberate recklessness on the part of CSS management. Measuring, estimating, calculating and writing errors and the like shall not be deemed to be the result of intent or deliberate recklessness.
- CSS shall not be liable for indirect damage, consequential damage, loss of profit, loss of savings, loss of goodwill, damage due to business interruption and damage resulting from claims by the Counterparty's customers, as well as any other consequential damage of any nature whatsoever and regardless of how it arose, and it shall not be eligible for compensation.
- CSS shall not accept liability for failures in the performance of the Agreement due to the fault or actions of the Counterparty or third parties for which the Counterparty is responsible. CSS shall also not be liable for damage caused by subordinates of CSS who carry out instructions, advice or assignments of the Counterparty which do not fall within the scope of the activities resulting from the assignment unless the Counterparty proves that this is due to gross negligence or intent on the part of CSS.
- CSS shall never be liable for damage on any account whatsoever in so far as this is not covered or cannot reasonably be covered by insurance.
- In case CSS is liable, this liability shall be limited to the amount of the payment made by CSS' insurer plus the amount deductable. In case the insurer does not pay or the damage is not covered by any insurance policy, CSS' liability shall be limited to the crediting of the invoice amount (excluding VAT) for the part of the Services not done or done incorrectly or with an obligation to pay compensation, such after deduction of the purchase costs and costs of third parties for this part.
- In case CSS cannot fully invoke the limitations and exclusions of liability mentioned in the previous paragraphs, CSS shall never be liable for damage of any kind which exceeds €10,000.00 per event or series of events.
- CSS shall not give any guarantee in respect of goods delivered or Services performed, advice or research provided and CSS does not guarantee that the goods delivered, advice or Services performed are suitable for the purpose for which the Counterparty intends them to be used, unless expressly agreed otherwise in writing (by setting a guarantee period). In case the goods delivered and Services performed are guaranteed to CSS by suppliers of these goods or Services, CSS shall transfer these rights to these suppliers at the first request and expense of the Counterparty to the extent possible.
- Unless expressly agreed otherwise, CSS's assignment shall entail only an obligation to perform to the best of its ability (not an obligation to achieve a certain result) the agreed Services and/or to deliver the agreed goods and/or to give the agreed advice.
- If CSS is held liable by the Counterparty on an extra-contractual basis, it shall not be further liable than it would be under the Agreement. Any claim of the Counterparty against CSS shall become time-barred and lapse by the mere lapse of 12 months from the time when the Counterparty became aware or should have been aware of the facts and circumstances giving rise to the claim.
Article 13. Indemnification
- In the event that CSS is held liable by a third party for damage for which CSS is not responsible towards the Counterparty, the Counterparty shall fully indemnify CSS and reimburse CSS for all sums due to CSS to this third party. In case CSS is obliged to compensate a third party for more than CSS is obliged to do under the contract with the Counterparty, the Counterparty shall indemnify CSS for the surplus. The Counterparty shall also be obliged to indemnify CSS against damage of and/or due to fines, claims, penalty payments and other government measures. These obligations of indemnification of the Counterparty shall also apply to the managers, partners, directors, employees and other persons involved with CSS.
Article 14. Intellectual and industrial property rights
- All rights relating to products of the mind which CSS develops or uses in the performance of the Agreement, including advice, reports, methods of working, designs, sketches, drawings, systems, system designs, software, preparatory materials and computer programs, shall belong to CSS and/or its licensors.
- Without prior written permission from CSS, the Counterparty shall not be permitted to reproduce, disclose or exploit the products of the mind referred to in paragraph 1 of this Article or the recording thereof on data carriers whether or not together with or through the use of third parties and/or to make them available to third parties in any other way, without prejudice to the provisions of Article 15.3 of these Conditions. CSS also retains the right to use the knowledge acquired in performing the Services for other purposes provided that no confidential information is disclosed to third parties.
Article 15. Confidentiality
- CSS shall be obliged to keep data and information supplied by or on behalf of the Counterparty confidential in respect of third parties who are not involved in the performance of the Agreement. This obligation shall not apply if CSS has a statutory or professional duty of disclosure or the Counterparty has released CSS from the duty of confidentiality. The Counterparty shall also have an obligation to observe secrecy which shall apply in any case in respect of CSS's methods. This duty of confidentiality shall be for an indefinite period unless the parties agree otherwise in writing.
- CSS shall be entitled, in case it acts on its own behalf or in case of civil, administrative or criminal proceedings, to use the data and information provided by or on behalf of the Counterparty as well as other data and information of which it has knowledge in the execution of the Agreement in so far as these are relevant in its reasonable opinion.
- The Counterparty shall not be permitted to publish or otherwise make available to third parties the content of CSS's advice, opinions or other statements whether in writing or not without CSS's prior written consent unless this is directly related to the Agreement, to obtaining an expert opinion on CSS's Services, or if the Counterparty has a statutory or professional obligation to publish or is acting on its own behalf in disciplinary, civil, administrative or criminal proceedings.
Article 16. Termination of agreement
- CSS shall be entitled to terminate or suspend the performance of its obligations under the Agreement in the event that the Counterparty fails to fulfil any of its obligations under the Agreement or these Conditions or if CSS has reasonable grounds for believing that the Counterparty will not be able to fulfil these obligations. CSS shall inform the Counterparty of this fact, specifying the obligation which the Counterparty has not fulfilled or is in danger of not fulfilling. In such case CSS shall not be liable for any consequences for the Counterparty.
- In case of liquidation, (application for) suspension of payments or bankruptcy, attachment at the expense of the Counterparty, debt restructuring or any other circumstance as a result of which the Counterparty can no longer dispose freely of its assets, CSS shall be entitled to cancel the Agreement with immediate effect without any obligation to pay any compensation. CSS shall also be entitled to the right mentioned in the previous sentence if the relationship of control in the Counterparty's company changes.
Article 17. Prohibition on the acquisition of employees
- The Counterparty shall refrain from (directly or indirectly) employing CSS employees or approaching employees for employment who have been involved in the execution of the Agreement in the two preceding years without CSS' written consent.
- The Counterparty shall forfeit to CSS an immediately payable penalty of fifty thousand euros (EUR 50.000) for each employee with whom CSS enters into an employment agreement if it infringes paragraph 1 of this article.
Article 18. Jurisdiction and applicable law
- All agreements between CSS and the Counterparty shall be governed Dutch law, with the exclusion of the Convention on International Sales of Goods (CISG) of 11 April 1980 (Treaty Series 1986.61).
- All disputes which may arise between CSS and the Counterparty shall be submitted to the District Court of Limburg, Roermond. CSS shall also have the right to submit disputes to another legally competent court.
- In the event these Conditions are available in several languages, the Dutch version shall prevail in case of differences in content or interpretation, except in the event that CSS communicates with the Counterparty mainly in English or another language.