Article 1 General
- These terms and conditions apply to any offer orquotation (“Tender”) and Agreement (“Agreement”)between Paal15 B.V. (“Paal15” or “we”) and aclient(“Client” or “you”) to which Paal15 has declaredthese general terms and conditions (“General Termsand Conditions”) applicable, insofar as the parties havenot expressly deviated from these General Terms andConditions in writing.
- The General Terms and Conditions also apply toAgreements for which Paal15 calls in a third party. IfPaal15 can derive rights from these General Terms andConditions with respect to an Agreement, it can alsoexercise these rights with respect to other Agreements.
- If one or more provisions of these General Terms andConditions should at any time be invalid in whole or inpart, for example in the event of nullity, annulment ordissolution, the remaining valid provisions will remain infull force and effect. Paal15 and the Customer will thenenter into consultations in order to agree new provisionsto replace the invalid provision(s), taking the purpose andpurport of the original provision(s) into account as muchas possible.
- If there is any uncertainty about the interpretation ofone or more provisions of these General Terms andConditions, the interpretation must take place ‘in thespirit’ of these provisions.
- If Paal15 does not always require strict compliance withthese General Terms and Conditions, this does not meanthat its provisions do not apply or that Paal15 would losethe right to demand strict compliance with these GeneralTerms and Conditions in other cases.
Article 2 Quotations and offers
- Every Quotation is without obligation, unless a periodfor acceptance is stipulated in the Quotation. If noacceptance period has been set, no rights can bederived from the Quotation if the product to which theQuotation relates is no longer available.
- Paal15 cannot be held to a Quotation if the Customer canreasonably understand that the Quotation contains anapparent mistake or writing error.
- The prices stated in a Quotation are exclusive of anycosts to be incurred in connection with an Agreement,including travel and accommodation costs, shippingcosts and administration costs.
- If the acceptance (whether or not on minor points)deviates from the Quotation, Paal15 will not be bound byit, unless it expressly agrees.
Article 3 Commitments
- The Agreement is entered into for an indefinite periodof time, unless the nature of the Agreement dictatesotherwise or if the parties expressly agree otherwise inwriting.
- If a period of time has been agreed or given for theperformance of certain work or for the delivery ofcertain items, this will under no circumstances be afatal deadline. If a term is exceeded, the Customer musttherefore give Paal15 written notice of default, giving areasonable period of time within which to still performthe Agreement.
- Paal15 will perform the Agreement to the best of itsknowledge and ability and in accordance with the requirements of good craftsmanship. All obligations thatPaal15 is required to fulfil under an Agreement are notobligations to guarantee a certain result but obligationsto perform to the best of its ability, unless the partiesagree otherwise in writing.
- Paal15 has the right to have certain services performedby third parties. The applicability of Section 7:404 (whichprovides for the event that the contract is to be carriedout by a specific person) and Section 7:407(2) (whichestablishes joint and several liability if the contract isawarded to more than one contractor) of the Dutch CivilCode is expressly excluded.
- If Paal15 or third parties engaged by Paal15 in connectionwith the contract perform work at the Client’s locationor at a location designated by the Client, the Client willprovide the facilities reasonably deemed necessary bythose employees free of charge.
- Paal15 is entitled to perform the Agreement in differentstages and to invoice any parts thus performedseparately, unless the parties agree otherwise in writing.
- If the Agreement is performed in stages, Paal15 maysuspend the performance of those parts relating toa subsequent stage until the Client has approved theresults of the preceding stage in writing.
- The Customer will ensure that all information whichPaal15 indicates is necessary or which the Customershould reasonably understand is necessary for theperformance of the Agreement is provided to Paal15in a timely manner. If the information required for theperformance of the Agreement is not provided to Paal15in a timely manner, Paal15 will be entitled to suspendthe performance of the Agreement and/or charge theclient for the additional costs resulting from the delayat the applicable rates. The performance period will notcommence until the Customer has made the informationavailable to Paal15. Paal15 will not be liable for damageof any nature whatsoever due to Paal15’s reliance oninaccurate and/or incomplete information provided bythe Customer
- If Paal15 agrees a set price with the Customer, Paal15will nevertheless be entitled to increase this price at anytime without the Customer being entitled to annul theAgreement for that reason if the increase in price resultsfrom an obligation under any laws or regulations or forother reasons that could not reasonably have beenforeseen at the time the Agreement was concluded.
Article 4 Exigibility, annulment, cancellation
- If the Agreement ends on any ground whatsoever,Paal15’s claims against the Customer will be immediatelyexigible.
- If Paal15 terminates the Agreement prematurely, Paal15will arrange for the transfer of work still to be performedto third parties, if so desired, in consultation with theClient. If the transfer of the work entails costs for Paal15which it does not reasonably have to bear, for exampleif the costs are excessive in relation to the scope of thecontract under the Agreement, Paal15 will be entitled tocharge these costs – with a reasonable due date – tothe Customer.
- In the event of liquidation, (application for) a moratoriumor bankruptcy of the Client’s company, or of seizure atthe expense of the Client or any other circumstance as aresult of which the Client can no longer make free use ofits assets, Paal15 will be free to terminate the Agreement immediately and with immediate effect, without anyobligation on its part to pay any compensation orindemnity. In that case, Paal15’s claims against theCustomer will be immediately exigible.
- If the Customer terminates an Agreement on whatevergrounds before it has been performed in full, theCustomer will owe the full price for the work performed,plus any costs incurred.
Article 5 Force majeure
- In this Agreement, in addition to what it means accordingto the law and case law, force majeure means all externalcauses, foreseen or unforeseen, that are beyond Paal15’scontrol, as a result of which Paal15 is unable to fulfil itsobligations. This includes strikes at the company ofPaal15 or third parties. Paal15 is also entitled to invokeforce majeure if the circumstance that prevents the(further) performance of the Agreement occurs afterPaal15 should have fulfilled its obligation.
- During the period that the force majeure continues,Paal15 may suspend the fulfilment of its obligationsunder the Agreement. If this period lasts longer than twomonths, each of the parties will be entitled to annul theAgreement without being obliged to pay the other partycompensation.
- Insofar as at the time of the occurrence of force majeurePaal15 has already partially fulfilled its obligations underthe Agreement or will be able to fulfil them, and the partalready fulfilled or to be fulfilled has value of its own,Paal15 will be entitled to invoice the part already fulfilledor yet to be fulfilled separately. The Client is obliged topay this invoice as if it were a separate Agreement.
Article 6 Payment and collection costs
- Payment must always be made within 7 days of theinvoice date, in a manner to be specified by Paal15 andin the invoiced currency, unless specified otherwise inwriting by Paal15. Paal15 is entitled to invoice periodically(on a monthly basis).
- If the Customer fails to pay an invoice on time, theCustomer will be in default by operation of law. In thatcase, the Client will owe interest of 1% per month, unlessthe statutory interest rate is higher, in which case thestatutory interest will be due. The interest on the exigibleamount will be calculated from the moment that theCustomer is in default until the moment of payment ofthe full amount due, including interest and costs.
- Paal15 is entitled to have the payments made by theCustomer to first of all reduce the costs, then to reducethe interest that has fallen due and finally to reducethe principal sum and the current interest. Paal15 may,without thereby being in default, refuse an offer to pay ifthe Customer specifies a different order for the allocationof the payment. Paal15 may refuse full repayment of theprincipal sum if the outstanding and current interest andcollection costs are not also paid.
- The Customer is under no circumstances entitled toset off any amounts it owes Paal15. The Customer whodoes not have recourse to section 6.5.3 of the DutchCivil Code (for example because the Customer qualifiesas a “large enterprise”) is also not entitled to suspendpayment of an invoice for any other reason.
- If the Customer defaults on the (timely) fulfilment ofits obligations, all reasonable costs to obtain paymentin and out of court will be payable by the Customer. If the Client is not a consumer, the extrajudicial costs willbe set at 15% of the principal sum. If the Customer isa consumer, the extrajudicial costs will be calculatedin accordance with the statutory graduated scale.Any judicial and foreclosure costs incurred will alsobe recovered from the Client. The Client will also owestatutory interest on the collection costs due.
Article 7 Retention of title
- If the Agreement is (partly) intended for the delivery of anitem or if work is carried out that can be contained in orstored in an item, such as papers or data storage media(“Item”), then the provisions of this article will also apply.
- All Items remain the property of Paal15 until the Clienthas duly fulfilled all obligations under the Agreement.
- An Item that is subject to retention of title pursuant toparagraph 2 may not be resold and may never be usedas a means of payment. The Client is not authorised topledge or encumber in any other way the Items coveredby the retention of title.
- The Customer must always do everything that mayreasonably be expected of it in order to safeguardPaal15’s property rights. If third parties seize the Itemsdelivered subject to retention of title or wish to establishor enforce rights to them, the Customer will be obligedto inform Paal15 thereof immediately. Furthermore, theCustomer undertakes to insure the Items deliveredsubject to retention of title and to keep them insuredagainst fire, explosion and water damage as well asagainst theft, and to make this insurance policy availablefor inspection by Paal15 upon request. If the insurance ispaid out, Paal15 will be entitled to the insurance money.To the extent necessary, the Client undertakes vis-à-visPaal15 in advance to cooperate in whatever may be orprove to be necessary or desirable in that context.
- In the event that Paal15 wishes to exercise its propertyrights referred to in this article, the Customer gives itsunconditional and irrevocable prior consent to Paal15and third parties designated by Paal15 to enter allthose places where Paal15’s property is located and torepossess the same.
Article 8 Limitation period
- Contrary to the statutory limitation periods, the limitationperiod for all claims and defences against Paal15and third parties involved in the performance of anAgreement by Paal15 is one year.
Article 9 Liability
- If Paal15 should be liable, its liability will be limited to theprovisions of this article.
- The risk of loss, theft and embezzlement of or damageto an Item, documentation, databases, software anddata (including codes, passwords and user names)delivered, manufactured or used for the purposes of theAgreement will pass to the Customer at the momentof transfer of the actual power of disposition to theCustomer.
- Paal15 will not be liable for damage of whatever naturearising due to Paal15’s reliance on inaccurate and/orincomplete information provided by or on behalf of theCustomer.
- If Paal15 should be liable for damage, then Paal15’sliability will be limited to a maximum of the invoice value relating to the damage under the Agreement, or at leastthat part of the Agreement to which the liability relates,or to the amount paid out in the case in question underthe insurance policy/policies taken out by Paal15.
- Paal15 will only be liable for direct damage.
- Direct damage includes (i) the reasonable costsassociated with determining the cause and extent ofthe damage, insofar as the determination relates todamage within the meaning of these conditions, (ii)any reasonable costs incurred to make Paal15’s poorperformance comply with the Agreement, insofar asthese can be attributed to Paal15, and (iii) any reasonablecosts incurred to prevent or limit damage, insofar asthe Customer demonstrates that these costs have ledto a limitation of direct damage as referred to in theseconditions.
- Paal15 will under no circumstances be liable for indirectdamage, including consequential damage, loss ofprofit, lost savings and damage as a result of businessstagnation.
- The limitations of liability stipulated in this article will notapply if the loss is due to intent or gross recklessness onthe part of Paal15 or its managers and/or subordinates.
Article 10 Indemnification
- The Customer will indemnify Paal15 against any claimsfrom third parties who suffer damage in connectionwith the performance of the Agreement the cause ofwhich is attributable to parties other than Paal15. If Paal15should be held liable by third parties for this reason, theCustomer will be obliged to assist Paal15 both in and outof court and to immediately do everything that may beexpected of it in that case. Should the Customer fail totake adequate measures and/or any measures desiredby Paal15, then Paal15 will be entitled to do so itself,without any notice of default being required. All costsand damage incurred by Paal15 and third parties as aresult of this will be entirely at the expense and risk of theClient.
Article 11 Information requirements
- In order to enable Paal15 to perform the Agreement duly,the Customer is obliged to always provide Paal15, in atimely manner, with all information or data reasonablyrequired by Paal15, as well as all information or datawhich the Customer can reasonably expect to benecessary for Paal15 to fulfil its obligations under theAgreement.
Article 12 Intellectual property
- Paal15 reserves the rights and powers vested in it underthe Copyright Act and other intellectual property lawsand regulations relating to intellectual property rights(in the broadest sense and however formulated in aquotation or Agreement), such as brands, models, tradenames and/or domain names (“IP rights”).
- Paal15 is entitled to use the knowledge or know-howgained on its part as a result of the performance of anAgreement for other purposes, insofar as no informationthat the Customer has designated as strictly confidentialin writing beforehand is brought to the attention of thirdparties.
- The Customer gives Paal15 permission – in advance ifand insofar as necessary – to contact the Customer for future commercial work and to use work produced forthe Customer as a reference for services provided byPaal15, for example by posting a company logo on thePaal15 website or in quotations for other (prospective)customers.
- In the event that Paal15 is prepared to undertake totransfer an IP right to or for the benefit of the Customer,such an undertaking can only be given explicitly and inwriting.
- Insofar as Paal15 has developed or commissioned thedevelopment of an IP right specifically for the Customerand the parties agree in writing that the IP right will betransferred to the Customer, this does not affect theright of Paal15 to use and/or commercialise the parts,principles, designs, ideas and documentation underlyingthat development for itself or for third parties free ofcharge, or to develop or use a similar IP right for itself orfor a third party, unless the parties agree otherwise inwriting.
- All IP rights developed or to be developed under theAgreement are vested in Paal15 or its suppliers orlicensors. Any rights of use vested in the Customer arenon-exclusive, non-transferable, non-licensable andnonsub-licensable, unless the parties agree otherwise inwriting.
- The Customer guarantees Paal15 that no third-partyrights preclude the development of IP rights underthe Agreement and will indemnify Paal15 against suchclaims, except insofar as the parties have agreedin writing on an Investigation as provided for in thefollowing article, in which case the exception applies onlyto that part of the Agreement that the Research explicitlyrelates to.
- Partly on the basis of Article 11 of these General Termsand Conditions, the Customer is obliged to notify Paal15in a timely manner of all information and knowledge ithas about any claims from third parties in connectionwith an IP right and the Agreement.
Article 13 Investigations to intellectual property
- If and insofar as the parties agree that Paal15 or a thirdparty engaged by it will conduct an investigation or willhave an investigation conducted into IP rights, includingin any event any investigation into the availability,comparison or infringements of existing or intendedIP rights (“Investigation”), then the provisions of thesegeneral terms and conditions and more specifically thisarticle will apply at all times, unless the parties agreeotherwise in writing.
- Insofar as the Parties do not agree in writing that anInvestigation forms part of the Agreement, Paal15 will notconduct an Investigation.
- An investigation will only be conducted into IP rightsthat have been made public in the appropriate officialregisters in the Netherlands, unless the parties agreeotherwise in writing.
- Decisions based on the results of an Investigation, suchas a decision to register, use or terminate IP rights, willbe taken entirely by and at the expense and risk of theCustomer, unless the parties agree in writing that Paal15will play an advisory role in this respect, in which casethese General Terms and Conditions will apply.
- Under no circumstances will an Investigation mean thatPaal15 will perform any monitoring activities, such asmonitoring for expiration or infringement of IP rights.
Article 14 Confidentiality obligation
- The Customer will keep confidential information strictlyconfidential and will in that respect observe at least thesame duties of care and guarantees as apply in respectof its own internal confidential information and willoblige its employees and other persons working for it tocomply with the provisions of this Agreement. Subjectto Paal15’s written consent, confidential information mayonly be used for the purpose for which it was providedand the Customer may not otherwise use confidentialinformation for its own benefit.
Article 15 Applicable law and disputes
- All legal relationships to which Paal15 is a party areexclusively governed by Dutch law, even if an obligationis performed abroad in whole or in part or if the partyinvolved in the legal relationship is domiciled there. Theapplicability of the Vienna Sales Convention is excluded.
- The court in Paal15’s place of business has exclusivejurisdiction to take cognisance of disputes, unless thelaw stipulates other mandatory provisions. Nevertheless,Paal15 is entitled to bring the dispute before the courtthat has jurisdiction according to the law.
- The parties will only apply to the court after theyhave made every effort to settle a dispute in mutualconsultation.
Article 16 Amendment to General Terms and Conditions
- The latest version or, as the case may be, the versionthat applied at the time the legal relationship with Paal15was established will always apply. Paal15 reservesthe right to amend the General Terms and Conditionsfrom time to time, with the most recent version beingpublished from time to time on the Paal15 website.
- The Dutch version of the General Terms Conditionsalways prevails with regard to their interpretation.