TERMS AND CONDITIONS
January2019
Adopted by the Vakgroep GLAS of Bouwend Nederland, filed with the Registry of the District Court of Amsterdam under number 21/2019.
Article 1 - Definition
In these General Terms and Conditions, "user" means the person who uses or tends to use these General Terms and Conditions in one or more agreements or refers to them in offers or other documents.
"Other party" means both the person acting in the exercise of a profession or business who has accepted or can be assumed to have accepted the validity of these General Terms and Conditions in any way and the consumer.
"Consumer" means a natural person, not acting in the exercise of a profession or business, who has also accepted or can be assumed to have accepted the validity of these General Terms and Conditions in any way. All provisions of these General Terms and Conditions also apply to agreements between the user and a consumer, unless expressly stated otherwise.
Article 2 - General; offers and confirmations
2.1. These General Terms and Conditions shall apply to all agreements, in which the user acts as a provider, seller and/or supplier of goods or performs services with respect to the treatment and/or processing and/or installation of glass and/or related articles.
2.2. All offers are without obligation unless they contain a deadline for acceptance. All samples and other data provided with the offer are provided by way of indication only. If an offer contains a non-binding offer and this is accepted, the user has the right to revoke the offer within 5 working days of receiving the acceptance.
2.3. All orders taken by representatives of the user or by intermediaries shall only bind the user if they have been confirmed by the user in writing in an order confirmation, order confirmation or otherwise. Written confirmation shall also mean confirmation by e-mail and/or fax.
2.4. Applicability of general terms and conditions used by the other party is expressly rejected; these terms and conditions take their place to the extent necessary.
2.5. If to an agreement as referred to in paragraph 1 other terms and conditions apply in addition to these terms and conditions, then in case of conflict the provision most favorable to the User shall apply, such at the discretion of the User.
2.6. Deviations from these terms and conditions shall be valid only if agreed in writing between the parties.
2.7. An offer to a consumer shall be made in writing and dated and, notwithstanding paragraph 2, shall be irrevocable for 30 days after receipt. The offer shall include a description of the work to be performed and materials to be supplied in sufficient detail to allow the consumer to properly evaluate the offer. The offer to the consumer provides insight into the price and whether there is a fixed contract price, a guide price or whether the work will be done on a cost-plus basis.
Article 3 - Prices
3.1. The user shall be entitled to pass on to the other party any taxes, import duties, levies or other charges introduced or increased by the government after the offer or the conclusion of the agreement.
3.2. If after the offer or the conclusion of the agreement one or more of the cost-determining factors, on which the user's price(s) is/are based, is/are changed due to any circumstance whatsoever, the user shall be entitled to increase the offered or agreed price(s) accordingly, without this entitling the other party to dissolve the agreement.
3.3. Only in case the price offered to the consumer is already increased within three months of the offer, the consumer has the right to dissolve the contract.
3.4. All prices are always exclusive of VAT, unless otherwise agreed in writing. To consumers, the price offered is always inclusive of VAT.
Article 4 - Delivery; delivery time and transport
4.1. Agreed delivery times are indicative and not deadlines.
4.2. Unless otherwise agreed in writing, deliveries shall take place ex user or, if delivered directly from the manufacturer to the other party, deliveries shall take place ex factory.
4.3. Transport of the glass shall always be at the expense and risk of the other party, unless otherwise agreed in writing. The user shall be entitled to charge the other party a minimum amount of € 50,= excluding VAT for the transport. The user shall always be free to choose the means of transport.
For consumer:
User is always free to choose the means of transportation and transport. The User is entitled to charge the consumer at least € 50,= including VAT for transport. If the consumer designates a carrier and the choice of carrier is not offered by the User, the transport of the glass is always at the expense and risk of the consumer.
4.4 The other party has the option of taking out insurance with the user for the purpose of transport.
4.5. The transport ends when the glass is placed next to the transport vehicle at its destination.
For consumer: For the consumer, the item comes at his risk from the moment the consumer or a third party designated by him, who is not the carrier, has received the item.
4.6. If the other party places an order on call, it must actually be called for and taken delivery of within the period of time set by the other party and accepted by the user.
4.7. If the agreed delivery time to a consumer is exceeded by more than two weeks, the User shall be obliged to compensate the consumer for the direct damage suffered as a result, unless the delay cannot be attributed to the User.
4.8. Work that is not carried out by the user and that leads to a delay of the user's work must be reported to the user in good time. If the agreed delivery time is exceeded as a result of these circumstances, user shall not be liable for damages to the other party.
Article 5 - Packaging
5.1. Upon delivery of glass, the user shall make packaging available to the other party. The user may charge a fee for this. From the moment of delivery of the glass, up to and including the day on which the user collects the packaging again, the packaging shall be at the risk of the other party.
5.2. The other party is obliged to put the packaging in the same condition and quantity at the user's disposal again, on the day the user collects the packaging again.
5.3. The other party shall notify the user in writing or by e-mail as soon as the packaging can be collected by the user.
Article 6 - Complaints
6.1. Unless special quality requirements were stipulated by the other party when placing the order, which have been confirmed in writing by the user, ordinary trade quality shall be delivered in accordance with the applicable NEN standards.
6.2. The user has the right to deliver items that differ slightly in color and/or design from the model, sample or example.
6.3. The other party is obliged to examine immediately after delivery of the goods whether the delivered goods meet the agreed requirements.
6.4. Provided that it can be reasonably recognized by the User, the User is obliged to point out to the Consumer:
In the case of non-consumers, the user expressly does not have the aforementioned duty.
6.5. Despite the User's duty to warn the Consumer pursuant to the aforementioned paragraph, the Consumer shall bear the risk of damage if - despite the aforementioned warning by the User - it is caused by:
6.6. Complaints by the other party, to the effect that the goods delivered do not meet the agreed quality, must be brought to the user's attention by registered letter within 8 days of receipt of the goods, failing which the latter shall not be able to enforce any right against the user.
For consumer:
Theconsumer's complaint that the delivered goods do not meet the agreed quality must be brought to the attention of the user within a reasonable time after he discovered or should have discovered this, but at the latest within 10 days after delivery. A consumer may not claim that the item does not meet the agreement if at the time of concluding the agreement he was aware or could reasonably have been aware of this.
6.7. If a timely submitted complaint turns out to be correct, the user shall only be obliged to replace the originally delivered items with items of the agreed quality. The user shall - at his discretion - also be entitled to repair the item or to proceed to crediting of the relevant invoice. The other party shall therefore not be entitled to dissolve the agreement. Any other or further liability of the user is excluded. For consumer: The consumer is only not entitled to repair or replacement of the delivered goods if repair or replacement is impossible or cannot be required of the user. This is the case when the costs thereof are disproportionate to the costs of exercising another right or claim to which the consumer is entitled. The consumer may only (partially) dissolve the contract if repair or replacement is impossible or cannot be required of the user.
6.8 The user is not liable for technically unavoidable deviations in color, quality, design and dimensions.
6.9 Complaints of the other party about the manner of fulfillment of the contract by the user, and not relating to the quality of the delivered goods, must be brought to the attention of the user in such time and in such a way that the latter can ascertain the correctness of the complaint, failing which the other party shall not be able to enforce any right against the user in this respect.
6.10 Defects that can be detected immediately upon delivery (including defects relating to quantities, dimensions and color) should be stated by the other party immediately on the document signed upon delivery (e.g. a waybill). If such a defect is not stated on the aforementioned document, the other party cannot derive any rights from the defects referred to in this article.
For consumer:
The consumer must notify the user of the defects mentioned in this article within a reasonable time after he has discovered or reasonably should have discovered them, but at the latest within 10 days after delivery.
6.11 If a timely submitted complaint turns out to be correct, the user shall still be entitled to fulfill his obligations, without the other party being able to claim anything further in this respect from the user, such excluding the case in which fulfillment should no longer be possible.
Article 7 - Payment
7.1 . The other party shall be obliged to pay the invoices of the user within 30 days from the invoice date without deduction of any discount. Payment shall take place without setoff or suspension on any account whatsoever and without the other party being allowed to block its payment obligation by attachment under itself or otherwise. A credit limitation surcharge of 3% may be calculated on the invoices, which may only be deducted if the invoice amount is paid in time. However, the user is at all times and without giving reasons entitled to demand cash payment before or upon delivery of the goods.
7.2. A payment shall be deemed to have been received as soon as the amount has been credited to one of the User's bank or giro accounts or has been handed over to the User in cash on presentation of a receipt.
7.3. If the term of payment stated on the invoice is exceeded, the other party shall be in default by operation of law, without further notice of default being required. In that case, the other party shall owe interest of 1.5% per month on the outstanding amount, whereby part of a month shall be counted as a whole month, from the day on which the amount owed becomes due and payable until the day of full payment.
7.4. If the Consumer is in default, the User shall send him a written reminder granting the Consumer a final period of fourteen days to still pay. In doing so, the Consumer shall also be informed of the consequences of non-payment, whereby the User shall claim the statutory interest and compensation of the extrajudicial costs in accordance with article 6:96 of the Civil Code, stating the amount of these costs.
7.5. Every payment shall first be applied to reduce the costs, then the interest due and finally to reduce the oldest invoices and current interest, even if the other party designates a different order of allocation.
7.6. In case of non-timely payment of an invoice, all payment obligations of the other party, regardless of whether the user has already invoiced in this regard, shall become immediately due and payable.
7.7. The user shall also have the right to demand the agreed price immediately and in its entirety, or to dissolve the agreement in the event of the other party's bankruptcy or suspension of payments, attachment of a significant part of its business property, attachment of goods intended for the execution of the agreement, or shutdown or liquidation of its business.
7.8. In case of default of the other party, not being a consumer, it shall be obliged to pay all extrajudicial collection costs, which shall be set at 15% of the total amount due with a minimum of € 250.9. If the user petitions for the bankruptcy of the other party, it shall, in addition to the agreed price, the interest due and extrajudicial collection costs, also owe the costs of the bankruptcy petition at the rate applicable in the district where the bankruptcy petition is filed.
7.9. If the user files for the bankruptcy of the other party, it shall, in addition to the agreed price, the interest due and extrajudicial collection costs, also owe the costs of filing for bankruptcy at the rate applicable in the district where the bankruptcy petition is filed.
7.10. If, after the other party is in default, the user sends reminders of payment or makes other requests for payment to the other party, this does not detract from the above provisions 1 to 8.
Article 8 - Security and Retention of Title.
8.1. If there is good reason to fear that the other party will not comply with its obligations under the agreement, the user shall have the right to demand that it immediately provides adequate security for the fulfilment of its obligations, in particular payment of the agreed price, at the first request of the user. Failure to comply with a written demand to that effect shall entitle the user either to suspend the performance of his obligations or to dissolve the agreement, without prejudice to his right to compensation.
8.2. All goods delivered and to be delivered by the user to the other party shall remain the exclusive property of the user until all claims which the user has or shall obtain against the seller, including in any case the claims mentioned in article 3:92 paragraph 2 of the Civil Code, have been paid in full.
8.3. If the other party is in default with respect to any obligation resting upon it, the user shall be entitled to recover the items belonging to him himself from the place where they are located, at the expense of the other party. All costs and damages falling upon or caused by the items during the period that they were in the possession of the other party, shall be at its expense and risk. The other party shall be obliged to cooperate with the user, if it wishes to make use of its right of retrieval, under penalty of a fine of 10% of the invoice amount.
8.4. If and as long as the user is still the owner of the goods delivered/to be delivered to the other party, the other party shall immediately inform the user when the aforesaid goods are (or threaten to be) seized or if third parties otherwise lay claim to (any part of) the aforesaid goods. Moreover, the other party shall inform the user on first request where the aforementioned items are located.
8.5. The other party guarantees that an attachment of said goods will be lifted as soon as possible. In the event of (imminent) attachment, (provisional) suspension of payment or bankruptcy on the part of the other party, the other party shall immediately point out the (ownership) rights of the user to the third party threatening attachment, the attaching bailiff, the administrator or the receiver.
Article 9 - Items handed over for safekeeping or processing.
9.1. The risk of damage or breakage at the time of or as a result of transport, temporary storage and/or safekeeping or of the processing of the goods given to the manufacturers or traders for processing or safekeeping or of goods, to which or with which an order is carried out wherever, shall be borne by the other party.
Article 10 - Dimensions, weights and measures
10.1. With respect to dimensions and weights of all items, User reserves tolerances in accordance with applicable NEN standards.
10.2. All sizes are rounded up to a number divisible by thirty when calculating in millimeters, on the understanding that for standard sizes this rounding is done to a number divisible by twenty. These rounded sizes shall take the place of actual sizes in all price, length, width and area calculations.
10.3. For other than rectangular shapes, the area is calculated according to the rectangle, into which the mold fits, including the surcharges applicable thereto for deviating sizes and models.
10.4. The costs of taking measurements, as well as making molds, placing or fixing glass and all other additional operations shall be borne by the other party.
Article 11 - Force majeure
11.1. The User shall not be liable for damage resulting from circumstances that could not be foreseen by the User at the time of entering into the contract. Such circumstances shall include, inter alia: lack of raw materials, factory disturbance of any kind, strike, lockout or lack of employees, quarantine, epidemics, natural disasters, mobilization, state of siege, state of war or war, traffic congestion on railroads or lack of means of transport, traffic blockades, as well as incomplete, untimely or non-fulfillment by the glass factories referred to in clause 4 of their obligations to the user, irrespective of the reason or cause thereof.
11.2. The user has the right to suspend or dissolve the fulfillment of the agreement in case of force majeure. The user retains the right to invoice the other party for the part of the agreement already executed.
11.3. If the user does subsequently perform a temporarily suspended part of the contract, the other party shall owe the entire agreed consideration without any discount.
Article 12 - Risk allocation in case of contracting
12.1. If the user also assumes the obligation to process and/or install glass sold by him on the instructions of the other party, or if there is only processing and/or installation of glass, the provisions laid down in this clause and the following clauses shall apply to the agreement between the parties in addition to the provisions in the previous clauses. In case of conflict, the provisions of this article and the following articles apply.
12.2. At the end of each working day, the other party shall be obliged to inspect the installation work carried out by the user on that day and - if found to be in agreement - to approve it. If the other party fails to do so without reasonable grounds or, in the case of rejection, fails to inform the user immediately in writing of the reasons for the rejection, the work shall be deemed to have been completed to the satisfaction of and approved by the other party.
12.3. If a timely submitted complaint regarding the installation of glass is found to be correct, the user shall only be obliged to reinstall the glass. Any other or further liability of the user is excluded.
12.4. The storage of the glass from the end of the transport referred to in article 4, 5th paragraph shall be at the expense and risk of the other party.
12.5. If the glass is stored at the construction site before it is placed, worked or processed by the user, the other party is not entitled to move the glass.
Clause 13 - Safety at the construction site
13.1. The other party is responsible for safety at the construction site. The other party guarantees that all building materials, aids and other items present at the construction site are sound and meet the requirements laid down in the relevant (legal) regulations.
13.2. Construction site means the entire area on which construction activities take place, regardless of whether these construction activities take place under the responsibility of the other party.
Article 14 - Dimensions and other data
14.1. The other party guarantees the correctness of the data appearing in the specifications and drawings or otherwise provided to the user regarding dimensions, quantities, constructions, methods of placement, etc., all this in the broadest sense of the word. Should there be any discrepancy between these data and reality, the user shall be entitled to compensation or additional payment.
14.2 The other party shall never be able to demand that the user use one or more special brands or a particular quality of the auxiliary materials used by it, such as sealant, putty, etc., unless such has been expressly agreed in advance.
Article 15 - Additional or less work
15.1. More or less work will generally be settled according to the unit prices agreed upon between the parties. Failing this, settlement will take place according to the unit prices stated in the specifications.
15.2. If the specifications do not offer a solution, settlement will take place on the basis of the normally prevailing prices, valid on the date, that the work has been or should have been performed.
Article 16 - Damages and liability
16.1. In all cases, the user shall never be obliged to pay compensation that exceeds the normal invoice value of the goods and/or services rendered in respect of which compensation is claimed.
16.2. The user shall not be liable for damage arising from the exceeding of deadlines, nor for consequential or indirect damage, including damage due to loss of profit.
16.3. The user shall not be liable for damage to or loss or loss of items stored at the user's premises at the other party's request. Such storage shall at all times be at the risk of the other party.
16.4 The user shall only be liable for damage to the construction work and damage to and loss of building materials, tools or other objects brought to or near the work, when such damage is caused by clearly demonstrable intent or gross negligence on his own part or on the part of those he used in the performance of the obligation.
16.5. The user shall not be liable for the consequences of supplying and/or fitting glass in incorrect quality, thickness and/or composition according to existing standards, codes of practice and/or factory instructions. The user shall also not be liable for the consequences of fitting glass in rebates of incorrect dimensions, shape or finish and/or under weather conditions that do not allow fitting in dry and clean rebates.
16.6. The consumer bears the risk for damages, as defined in Article 6 sub A paragraph 5.
Article 17 - Warranty
17.1. If a guarantee is provided by the manufacturer, whether or not via the User, in respect of the glazing supplied and/or installed by the latter, only the manufacturer's guarantee provisions shall apply with regard to the User's liability for the quality of the glazing supplied and/or installed.
17.2. If, for whatever reason, whether legal or factual, the manufacturer does not provide a warranty, no warranty shall be provided by the User either.
17.3. The User shall use its best efforts to promote compliance with its obligations under the warranty provided by the Manufacturer.
17.4 The Other Party may not assert any rights under any guarantee as long as it has not fulfilled all its obligations, both financial and otherwise, arising from the contract entered into with regard to the delivery and/or installation of the glazing.
17.5. The user guarantees to the consumer that the glazing is installed in accordance with the applicable standards and codes of practice. The guarantee does not cover breakage, e.g. due to local heating caused by partial glazing, painting of the pane, heating and/or hanging blinds placed too close to the pane, condensation on the room side or outside of the pane, interference, discoloration due to glass thickness and other unavoidable properties of the material used. Also excluded from the warranty are thermal breakage due to impact damage and mechanical breakage. All this within the applicable (inter)national standards.
17.6. The other party shall not be entitled to rely on the guarantee for correct installation if it performs the installation of the glass itself or has it performed by someone other than the user.
17.7. The other party is not entitled to invoke the warranty if the glass is
exposed to things with which the quality (of installation) of the glass can no longer be guaranteed by the user. This includes (therefore not exhaustive) the use of chemical agents, the use of aggressive cleaning agents, thermal causes, the use of sealants that are not compatible with the edge seal, the coating of the glass with foil, the application of paint, changes in the unit or other similar actions.
Article 18 - Additional provisions in installation work
18.1. For the vertical transport of all materials to be supplied by the user, it must be possible to make use of an industrially safe and operational construction crane or hoist with operating personnel present on the site, if not required; it must be possible for this vertical transport to take place within normal working hours at times to be determined in close consultation with the user.
18.2. If the Iosing of materials on the storey floors necessitates the presence of protrusion scaffolding that is safe and ready for use, this shall be provided by the other party at its expense.
18.3. Any scaffolding necessary for the placement of glass may be used by the User free of charge; the size and design of such scaffolding shall be or shall be adapted to the work to be performed by the User.
18.4 The User accepts no liability whatsoever with regard to installation instructions which have been determined without prior consultation with it.
18.5. If the user is instructed to install materials, which are made available to him for that purpose by the other party, no risk whatsoever is accepted by the user, not even during the assembly and the related work, where it concerns breakage and/or damage to such materials.
18.6. If the placement or assembly is hindered or delayed by circumstances beyond the user's control, the user shall be entitled to charge the other party for the additional costs resulting therefrom.
Article 19 - Legal requirements
19.1. If, after the conclusion of the contract of carriage, as a result of the expiry, amendment or introduction of laws, statutory regulations, etc., the execution costs of the work become higher than those applicable on the date on which the user submitted the quotation, the additional costs directly related to the work shall be settled. Likewise, any lesser costs directly related to the work shall be settled.
Article 20 - Limitation
20.1. Claims of the other party, not being a consumer, against the user shall lapse no later than one year after they arise.
Article 21 - Privacy
21.1. Personal Data shall be processed as part of construction, installation and maintenance work. The purpose of the processing is not to process that Personal Data as such, the purpose is to provide construction, installation and maintenance services. To provide that service, it is necessary to process Personal Data, such as an address and name.
21.2 The provisions of the privacy statement, as listed on the User's website, shall apply to these terms and conditions.
Article 22 - Applicable law; competent court.
22.1 Dutch law shall apply exclusively to all legal relations between the user and the other party.
22.2 All disputes which may arise between the user and the other party shall be submitted to the competent Dutch court.
