General terms and conditions
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General terms and conditions
Article 1 - General
- These terms and conditions apply to every offer, quotation and agreement between PawStory ®, hereinafter referred to as: "User", and a Other Party to which User has declared these terms and conditions applicable, insofar as these terms and conditions have not been explicitly deviated from in writing by the parties.
- These terms and conditions also apply to agreements with the User, for the execution of which the User must involve third parties.
- These general terms and conditions have also been written for the User's employees and management.
- The applicability of any purchase or other conditions of the Other Party is expressly rejected.
- If one or more provisions of these general terms and conditions should at any time be wholly or partially void or voided, the other provisions of these general terms and conditions will remain fully applicable. User and the Other Party shall then consult in order to agree on new provisions to replace the null and void or annulled provisions, taking into account as far as possible the purpose and intent of the original provisions.
- If there is any uncertainty concerning the interpretation of one or more provisions of these general terms and conditions, the explanation must be given 'in the spirit' of these provisions.
- If a situation arises between the parties that has not been regulated in these general terms and conditions, this situation should be assessed according to the spirit of these general terms and conditions.
- If the User does not always demand strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the User would lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.
Article 2 - Quotations and offers
- All the User's offers and quotations are without obligation, unless a deadline for acceptance was specified in the quotation. An offer or quotation shall lapse if the product to which the offer or quotation relates is no longer available in the meantime.
- The User cannot be bound by its offers or quotations if the Other Party can reasonably understand that the offers or quotations, or part thereof, contain an obvious mistake or error in writing.
- The prices mentioned in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred within the framework of the agreement, including travel and accommodation, postage and administration costs, unless otherwise indicated.
- If the acceptance (whether or not on subordinate points) deviates from the offer included in the quotation or offer, the User is not bound by it. The agreement will not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
- A composite quotation shall not oblige the User to perform part of the order for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3 - Contract duration; delivery periods, execution and amendment of agreement
- The agreement between the User and the Other Party will be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
- If a period has been agreed or specified for the completion of certain activities or for the delivery of certain items, this shall never be a deadline. If a period is exceeded, the Other Party must therefore give the User written notice of default. The User must be given a reasonable period in which to perform the agreement as yet.
- If the User requires information from the Other Party for the performance of the agreement, the performance period will not commence until after the Other Party has made this information available to the User correctly and in full.
- Delivery shall be made ex works of the User. The Other Party will be obliged to take delivery of the items at the time they are made available to it. If the Other Party refuses to take delivery or fails to provide information or instructions necessary for delivery, the User will be entitled to store the items at the Other Party's expense and risk.
- User shall be entitled to have certain activities carried out by third parties.
- User shall be entitled to execute the agreement in various phases and to invoice the part thus executed separately.
- If the agreement is performed in phases, the User may suspend performance of those parts that belong to a subsequent phase until the Other Party has approved the results of the preceding phase in writing.
- If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, then parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Other Party, of the competent authorities et cetera, is amended and the agreement is thereby qualitatively and/or quantitatively changed, this may also have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. User will provide a quotation of this in advance as much as possible. By amending the agreement, the originally specified period of execution may also be changed. The Other Party accepts the possibility of amending the agreement, including the change in price and execution period.
- If the agreement is amended, including an addition, the User will be entitled to only implement it after the person responsible within the User has given his consent and the Other Party has agreed to the price and other conditions specified for the implementation, including the time to be determined at that time when the agreement will be implemented. Failure or delay in implementing the amended agreement will not constitute default by the User, nor will it be a ground for the Other Party to terminate the agreement. Without being in default, the User may refuse a request to change the agreement if this could have consequences in a qualitative and/or quantitative sense, for example for the work to be carried out or the items to be delivered in that framework.
- If the Other Party should fail to properly fulfil its obligations towards the User, it will be liable for all damage (including costs) caused directly or indirectly to the User.
- If the User has agreed a fixed price with the Other Party, the User will nevertheless be entitled to increase this price at any time without the Other Party being entitled to dissolve the agreement for that reason if the price increase arises from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages etc. or on other grounds which could not reasonably have been foreseen at the time the agreement was concluded.
- 12.If the price increase other than as a result of a change in the agreement amounts to more than 10% and occurs within three months of the conclusion of the agreement, only the Other Party who is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code shall be entitled to dissolve the agreement by means of a written statement, unless User is then still willing to perform the agreement based on what was originally agreed, or if the price increase arises from a power or obligation resting on User by law or if it has been stipulated that delivery will take place more than three months after the purchase.
Article 4 - Suspension, dissolution and premature termination of the agreement
- User shall be authorised to suspend the fulfilment of the obligations or to dissolve the agreement, if:
- the Other Party does not fulfil, does not fully fulfil or does not timely fulfil its obligations under the agreement;
- After concluding the agreement, the User becomes aware of circumstances that give good reason to fear that the Other Party will not fulfil its obligations;
- When concluding the agreement, the Other Party was asked to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient;
- If, due to a delay on the part of the Other Party, the User can no longer be required to perform the agreement under the originally agreed conditions, the User will be entitled to dissolve the agreement.
- The User shall also be entitled to dissolve the agreement if circumstances arise which are of such a nature that performance of the agreement is impossible or if other circumstances arise which are of such a nature that the User cannot reasonably be expected to maintain the agreement unaltered.
- If the agreement is dissolved, the claims of the User against the Other Party become immediately due and payable. If the User suspends performance of its obligations, it shall retain its claims under the law and the agreement.
- If the User proceeds with suspension or dissolution, he shall not be liable in any way whatsoever for compensation of damage and costs arising from this.
- If the Other Party can be blamed for the dissolution, the User will be entitled to compensation for the damage, including the costs, incurred directly and indirectly as a result.
- If the Other Party fails to fulfil its obligations arising from the agreement and this failure justifies dissolution, the User will be entitled to dissolve the agreement immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnification, while the Other Party will be obliged to pay compensation or indemnification on account of default.
- If the agreement is terminated prematurely by the User, the User, in consultation with the Other Party, will ensure the transfer of the work still to be performed to third parties. This is unless the Other Party can be blamed for the termination. If the transfer of the activities involves extra costs for the User, these will be charged to the Other Party. The Other Party will be obliged to pay these costs within the period stated for that purpose, unless the User indicates otherwise.
- In the event of winding-up, (application for) a moratorium or bankruptcy, attachment - if and to the extent that the attachment has not been lifted within three months - at the Other Party's expense, debt rescheduling or another circumstance as a result of which the Other Party can no longer dispose freely of its assets, the User will be at liberty to terminate the agreement at once and with immediate effect or to cancel the order or the agreement, without any obligation on its part to pay any compensation or indemnification. In that case, the User's claims against the Other Party will be immediately due and payable.
- If the Other Party cancels an order placed wholly or partially, then the Other Party will be charged in full for the items ordered or prepared for it, plus any costs of delivery and removal thereof and the working time reserved for the performance of the agreement.
Article 5 - Force majeure
- The User will not be obliged to fulfil any obligation towards the Other Party if it is prevented from doing so due to a circumstance that is not attributable to fault, and for which it cannot be held accountable by virtue of the law, a juristic act or generally accepted practice.
- In these general terms and conditions, force majeure is understood, in addition to its meaning in the law and jurisprudence, to be any external cause, foreseen or unforeseen, over which the User cannot exercise any control, but which prevents the User from fulfilling his obligations. This includes strikes in the company of the User or third parties. User is also entitled to invoke force majeure if the circumstance preventing (further) compliance with the agreement occurs after the User should have complied with his obligation.
- User may suspend its obligations under the agreement during the period of force majeure. If this period lasts longer than 3 months, either party shall be entitled to dissolve the agreement without any obligation to pay the other party damages.
- Insofar as the User has already partially fulfilled his obligations arising from the agreement at the time when the force majeure occurs or will be able to fulfil them and insofar as independent value can be attributed to the part fulfilled or to be fulfilled respectively, the User shall be entitled to invoice the part already fulfilled or to be fulfilled respectively. The Other Party is obliged to pay this invoice as if it were a separate agreement.
Article 6 - Payment and collection costs
- Payment should be made within 14 days of the invoice date, in a manner to be indicated by the User in the currency in which the invoice was made, unless indicated otherwise by the User in writing. User is entitled to invoice periodically. Orders under the postage paid amount must be paid in advance. As well as the first order of a new customer.
- If the Other Party fails to pay an invoice on time, then the Other Party is legally in default. The Other Party then owes an interest of 1% per month, unless the legal interest is higher, in which case the legal interest is owed. The interest over the amount due will be calculated from the moment that the Other Party is in default until the moment of payment of the full amount due.
- The User will be entitled to have the payments made by the Other Party go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest.
- The User may, without thereby falling into default, refuse an offer of payment if the Other Party designates a different sequence for the allocation of the payment. The User may refuse full repayment of the principal sum, if this does not include the interest still due, the current interest and the collection costs.
- The Other Party shall never be entitled to set off any amounts owed by it to the User.
- Objections to the amount of an invoice do not suspend the payment obligation. The Other Party who is not entitled to appeal to section 6.5.3 (articles 231 up to and including 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
- If the Other Party is in default or breach of contract in the (timely) fulfilment of its obligations, then all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the Other Party. The extrajudicial costs are calculated on the basis of what is customary in the Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the User has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party shall also owe interest over the collection costs owed.
Article 7 - Retention of title
- All items delivered by the User within the scope of the agreement will remain the User's property until the Other Party has properly fulfilled all its obligations arising from the agreement(s) concluded with the User.
- Goods delivered by the User, which pursuant to paragraph 1 are subject to retention of title, may not be resold and may never be used as a means of payment. The Other Party is not authorised to pledge or otherwise encumber the items subject to retention of title.
- The Other Party must always do everything that may reasonably be expected of it to safeguard the User's property rights.
- If third parties levy attachment on the items delivered subject to retention of title or wish to establish or assert rights to them, the Other Party will be obliged to notify the User of this immediately.
- The Other Party undertakes to insure and keep insured the items delivered subject to retention of title against fire, explosion and water damage as well as against theft and to make this insurance policy available for inspection by the User on first demand. The User will be entitled to any insurance payment. To the extent necessary, the Other Party undertakes towards the User in advance to cooperate in anything that may (appear to) be necessary or desirable within that scope.
- In the event that the User wishes to exercise its property rights referred to in this article, the Other Party gives unconditional and irrevocable permission in advance to the User and third parties to be appointed by the User to enter all those places where the User's properties are located and to take back those items.
Article 8 - Guarantees, investigation and complaints, limitation period
- The goods to be delivered by the User comply with the usual requirements and standards that may reasonably be set at the time of delivery and for which they are intended at normal use in the Netherlands. The guarantee referred to in this article applies to items destined for use within the Netherlands. In the event of use outside the Netherlands, the Other Party must itself verify that the items are suitable for use there and meet the conditions imposed on it. In that case, User may set other guarantee and other conditions with respect to the goods to be delivered or activities to be performed.
- The guarantee referred to in paragraph 1 of this article shall apply for a period of 14 days after delivery, unless the nature of the delivered item dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the User concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good, unless stated otherwise.
- Any form of guarantee will cease to apply if a defect has arisen as a result of or arising from injudicious or improper use or use after the best-before date, incorrect storage or maintenance by the Other Party and/or third parties when, without the User's written consent, the Other Party or third parties have made changes or tried to make changes to the item, attached other items to it that should not have been attached or if they have been processed or treated in a manner other than prescribed. Neither will the Other Party be entitled to any guarantee if the defect has arisen due to or as a result of circumstances beyond the User's control, including weather conditions (such as, for example but not limited to, extreme rainfall or temperatures) et cetera.
- The Other Party shall be obliged to examine the delivered goods, or have them examined, immediately at the moment that the goods are made available to it or the work in question is carried out respectively. The Other Party must examine whether the quality and/or quantity of the delivered goods corresponds to what was agreed and meets the requirements that the parties agreed in this respect. Any visible defects must be reported to the User in writing within seven days of delivery. Any invisible defects must be reported to the User in writing immediately, but at the latest within 14 days of their discovery. Any invisible defects must be reported to the User in writing immediately and in any event no later than 14 days after their discovery. The report must contain a description of the defect that is as detailed as possible, so that the User is able to respond adequately. The Other Party must give the User the opportunity to investigate the complaint or have it investigated.
- If the Other Party submits a claim in time, this will not suspend its payment obligation. In that case, the Other Party shall also remain obliged to take delivery of and pay for the other goods ordered.
- If a defect is reported later, the Other Party will no longer be entitled to repair, replacement or compensation.
- If it has been established that an item is defective and a complaint about this was lodged in time, the User will, at the User's option, replace or take care of repairs or pay a replacement fee to the Other Party for the defective item within a reasonable period of time after receipt of the returned item or, if returning the item is not reasonably possible, written notification of the defect by the Other Party. In the event of replacement, the Other Party will be obliged to return the replaced item to the User and transfer ownership thereof to the User, unless the User indicates otherwise.
- If it is established that a complaint is unfounded, the costs incurred by the User as a result thereof, including the research costs, will be borne in full by the Other Party.
- After the guarantee period has expired, all costs for repair or replacement, including administration, dispatch and call-out charges, will be charged to the Other Party.
- 10.Contrary to the statutory limitation periods, the limitation period for all claims and defences against User and the third parties involved by User in the execution of an agreement, is one year.
Article 9 - Liability
- Should the User be liable, then this liability shall be limited to what has been regulated in this provision.
- The User is not liable for damage, of whatever nature, that has arisen because the User has relied on incorrect and/or incomplete details provided by or on behalf of the Other Party.
- If the User is liable for any damage, the User's liability shall be limited to a maximum of twice the invoice value of the order, or at least to that part of the order to which the liability relates.
- The User's liability shall in any case be limited to the amount paid out by its insurer in the case in question.
- The User is only liable for direct damage.
- Direct loss shall be understood to mean only the reasonable costs of determining the cause and scope of the loss, in so far as such determination relates to loss within the meaning of these terms and conditions, any reasonable costs incurred to have the User's defective performance fulfil the agreement, in so far as such costs can be attributed to the User, and reasonable costs incurred to prevent or limit loss, in so far as the Other Party demonstrates that these costs have resulted in limiting direct loss within the meaning of these general terms and conditions.
- User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
- The limitations to liability included in this article shall not apply if the damage is due to intent or gross negligence on the part of the User or his managerial subordinates.
Article 10 - Transfer of risk
- The risk of loss, damage or depreciation shall pass to the Other Party at the moment when the goods are brought under the control of the Other Party.
Article 11 - Indemnification
- The Other Party indemnifies the User against any claims from third parties who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than the User.
- If the User should be held liable by third parties for that reason, the Other Party will be obliged to assist the User at law and otherwise and immediately do everything that may be expected of it in that case. If the Other Party fails to take adequate measures, the User will be entitled to do so itself without notice of default. All costs and damages on the part of the User and third parties caused by this, are fully at the Other Party's expense and risk.
Article 12 - Intellectual property
- The User reserves the rights and powers vested in it pursuant to the Dutch Copyright Act and other intellectual laws and regulations. User has the right to use the increased knowledge by the execution of an agreement for other purposes, to the extent that no strictly confidential information of the Other Party is brought to the knowledge of third parties.
Article 13 - Applicable law and disputes
- Dutch law applies exclusively to all legal relationships to which the User is a party, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship has its place of residence there. The applicability of the Vienna Sales Convention is excluded.
- The court in the User's place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the User has the right to submit the dispute to the court which has jurisdiction according to the law.
- The parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.