GENERAL TERMS AND CONDITIONS of: ASL INTERCOM B.V. hereafter referred to as “ASL” with its registered office at Zonnebaan 42, 3542 EG Utrecht, the Netherlands, listed in the Trade Register of the Chamber of Commerce in Utrecht under number 30.068.350 where these terms and conditions have been filed.
Article 1. APPLICABILITY
- These general terms and conditions apply to all offers by ASL, as well as to all agreements entered into between ASL and the other party (as set out below) on the basis of which ASL renders services and/or delivers goods or makes goods available to the other party, and also apply to all that which in addition could be subject of agreement, considering ASL’s business activities.
- In these terms and conditions “the other party” means every (legal) person who has entered, or wishes to enter, into an agreement with ASL, as well as their authorised representative(s), successor(s) in title and heirs.
- The term “goods” in these terms and conditions also includes: computer software.
- The term “services” in these terms and conditions also includes: the carrying out of work and/or the issuing of advice.
- Stipulations varying these conditions are only effective insofar these have been agreed in writing between ASL and the other party and only apply to the relevant agreement.
- Any possible terms and conditions of the other party are not accepted by ASL, except after a separate written acceptance of such by ASL.
- The Dutch text of these terms and conditions prevails over any translations of such, whether certified or not.
Article 2. OFFERS
- Unless otherwise stated, ASL’s offers are without obligation and are valid for no more than forty five (45) days, counting from the date of the offer.
- Any drawings and data such as dimensions, weights, volumes and quantities, provided with an offer have been compiled as carefully as possible. This information is only binding insofar this is expressly confirmed.
- In respect of its offers, ASL assumes that goods are delivered in their usual design and that all services can be rendered in the normal way. ASL must be notified in writing in advance of any special requirements and circumstances, providing sufficient details. ASL shall then explicitly state in the offer whether, and to what extent, ASL has taken this into account.
- Offers, as well as drawings, designs, schedules, models, calculations and computer programs produced by ASL (or on instruction of ASL) shall not be passed on, or made available for inspection, to third parties without the express written consent of ASL.
Article 3. AGREEMENT
- Subject to the provisions below, an agreement between ASL and the other party does not come into effect until ASL has confirmed an order in writing or by means of the performance of the agreement. The confirmation is deemed to reflect the agreement accurately and comprehensively. ASL reserves the right to refuse orders without giving reasons.
- Later additional agreements or amendments as well as agreements with and/or undertakings by ASL’s personnel shall only bind ASL if they have been confirmed by ASL in writing.
- In respect of deliveries and/or services for which, considering their nature and size, no offer or order confirmation is sent out, the invoice is also to be regarded as an order confirmation which is deemed to reflect the agreement accurately and comprehensively.
- Every agreement is entered into under the condition precedent that the other party – to the sole discretion of ASL - appears to be sufficiently creditworthy as regards the financial performance of the agreement.
- During or after the formation of the agreement ASL is entitled before rendering any (further) performance, to demand security from the other party that both the payment and the other obligations shall be performed. ASL is also entitled to request an advance, of whatever amount, from the other party.
- The other party is not entitled to transfer any rights arising from an agreement in respect of any goods to be delivered or services to be rendered by ASL to third parties without the prior consent of ASL. ASL shall in any case not grant this consent if a price is stipulated for this transfer.
- The other party is only able to cancel an agreement if this is done in writing before the start of the performance of the agreement. In the event of cancellation, with due observance of the provisions below, any preparation costs incurred by ASL shall at all times be charged to the other party. If cancellation takes place more than 5 working days before the performance of the agreement, the other party must pay, in addition to the preparation costs referred to above, compensation to the amount of 50% of the agreed payment/price. If cancellation takes place later than 5 working days before the start of the performance of the agreement, the compensation as referred to above, shall be the full agreed payment/price.
- Any financial obligations of ASL towards third parties relating to the cancelled agreement, which have to be performed by ASL, including ordered, purchased or hired materials and/or hired personnel, shall also be charged in full to the other party.
Article 4. PRICES
- Every quotation is subject to price change, unless the contrary has been agreed in writing.
- Unless stated otherwise, ASL prices are:
- based on the level of purchase prices, wage costs, governmental levies, insurance premiums and other costs in force on the date of the offer or order.
- based on delivery “ex warehouse ASL”
- exclusive of VAT, import duties, other taxes, other levies imposed by government
- exclusive of the costs of packaging, loading and unloading, transport and goods-in-transport insurance
- stated in Euros. If stated in a different currency, any possible exchange rate movements vis-à-vis the Euro in the time period between the offer and the delivery, are charged on.
- If between the date of the offer and the date of supply the cost price factors referred to in the previous paragraph undergo an increase, ASL shall, with due consideration of any possible statutory provisions, raise the price accordingly.
- If works have also been agreed, ASL is entitled to charge any possible costs relating to demonstrable additional work or more difficult work than anticipated or with the fact that work had to be carried out at other times than the usual hours or in the event of delay in the performance of works through no fault of ASL, beyond the agreed price. ASL is also entitled to index the wages component and charge the calculated higher wage costs.
- If during the performance of the agreement, the other party requires more goods or services or services for a longer period than agreed and ASL is able to meet this requirement, all this shall be recorded in writing in a supplement to the agreement. Only after the supplement has been signed shall the additional goods and/or services be delivered, which must be paid in accordance with provisions of article 16 (Payment).
Article 5. DELIVERY TIME AND DELIVERY
- Delivery time means the term agreed in the agreement within which the goods have to be available to the other party and/or the services must have been rendered.
- The statement of delivery times is always by approximation only, unless expressly agreed otherwise in writing.
- An agreed delivery time only commences after all necessary information is in the possession of ASL and the payment, if and insofar this has to be made with the order has been made, or the requested security or the required advance has been given.
- ASL is obliged to observe the stated delivery time as far as possible but is in no way whatsoever liable for the reasonable exceeding of such.
- Exceeding the stated delivery time does not oblige ASL to pay any compensation and does not entitle the other party to cancel the agreement or refuse the purchase.
- Unless otherwise agreed, the delivery of goods is “ex warehouse ASL”.
- Delivery in consignments (partial deliveries) is always permitted. ASL is entitled to invoice aforementioned partial deliveries separately. In that event the other party is obliged to pay in accordance with the provisions of article 16 (Payment) of these terms and conditions.
- If the other party has not taken delivery of the goods after the expiry of the delivery time, they are stored at its disposal, for its account and at its risk. In the event of long-term storage as a result of not taking delivery of the goods on the agreed date, ASL shall charge storage costs.
- Minor variations in dimensions, colour, capacity, design and packaging of the delivered goods shall never form a reason for the other party to cancel the instruction/order wholly or in part or to refuse payment wholly or in part or to claim compensation.
- The other party is obliged to inspect the delivered goods and packaging immediately on receipt both in respect of quantity and quality. This also applies in the situation referred to in paragraph 8 of this article. Any possible shortfalls or damage must be notified to ASL in accordance with article 11 (Complaints) of these terms and conditions.
- If work has (also) been agreed outside the business location of ASL, the other party must ensure that the work can commence expeditiously by, inter alia, ensuring that the work place is easily accessible for the personnel of ASL and the materials to be supplied. In addition, the other party is obliged to provide the required electricity connections, proper work light, auxiliary equipment and scaffolding and to ensure that work carried out by third parties does not impede, or delay, the progress of the work of ASL.
- ASL is authorised to engage third parties (subcontractors) for the performance of the agreement.
- If at the request of the other party the performance of the agreement has been carried out within a shorter time frame than agreed, the additional costs associated with that are for the account of the other party. ASL shall provide the other party with a specification of those costs.
- If the preparation for the rendering of services is (partly) dependent on the information, directions, documentation or materials to be provided by the other party pursuant to the agreement and the other party does not fulfil its obligations to this end on time, irrespective of the cause, the agreed data and times are, if possible, changed accordingly. If changing is not possible or if changing leads to a breach of a strict deadline, the other party is entitled to cancel the agreement and the provisions of article 3(7) and (8) apply.
Article 6. REPAIRS AND MAINTENANCE
- The provisions of paragraph 1 to 9 inclusive of this article are intended for repairs insofar not arising out of the warrant provisions of article 12.
- ASL is at liberty to refuse any request for repairs.
- If the other party requires a cost estimate for the repairs to be carried out in advance, ASL shall provide this to the best of its understanding but without any obligation by ASL to carry out the repair for the estimated amount. ASL shall never carry out a repair for a fixed price.
- The other party is obliged to pay the costs of the repair to ASL by cash payment. The payment obligation arises the moment the goods, after repair, are available to the other party. ASL is entitled to require (partial) advance payment of the estimated costs of the repair.
- ASL can only provide an approximation of the timescale within which a repair shall be carried out. The other party is therefore not entitled to, on the exceeding of such term, refuse payment or claim any compensation.
- The repaired or to be repaired goods are located in the ASL’s warehouse at the risk of the other party.
- If, after a repair has been carried out and ASL has notified the other party of this, the other party does not pay and collect the repaired goods within 30 days or have those collected, ASL is at liberty to convert the relevant goods into cash and to transfer the proceeds, minus the repair costs, to the other party.
- Repairs are not covered by warrant provisions, with the exception of the usual warrant for added new parts, not being electronic parts.
- Replacements goods are only made available to the other party during repair or maintenance if such has been expressly agreed in the repair or maintenance order.
- Maintenance contracts can be entered into under detailed description of the maintenance work, mutual obligations and any possible warrant conditions. This often relates to reoccurring work for a fixed price, in which case ASL is bound by the price-fixing agreement.
Article 7. TRANSPORT
- If the other party request ASL to send the goods without any further directions, ASL shall determine the manner of sending and packaging with due care and diligence.
- Unless otherwise agreed, the transport is at the risk and expense of the other party.
- The transport of the goods is always at the risk of the other party, even if delivery carriage paid has been agreed and even then if the consignment note or similar documents of the carrier include a clause that all transport damage is for the account and at the risk of the sender.
Article 8. LIABILITY
- ASL is only liable for direct loss suffered by the other party, which demonstrably results from the agreement on the basis of which ASL delivers goods and/or renders services to the other party under the provisions of these terms and conditions.
- With due observance of that stated elsewhere in these terms and conditions, ASL is in any event not liable for loss caused by the improper use of the delivered goods or by the use of those for a different purpose than for which they are suitable in accordance is with objective standards.
- In the event of an attributable failure in the performance of an agreement, ASL is only be liable for replacement compensation i.e. compensation to the value of the shortfall in the performance. Any liability of ASL for any other kind of loss is excluded, including additional compensation in any form whatsoever, compensation for indirect loss or consequential loss due to loss of profit.
- ASL is also in no event liable for loss due to delay, for loss due to exceeding delivery times as a result of changed circumstances or for loss as a result of the provision of insufficient cooperation, information or materials by the other party.
- The compensation to be paid by ASL due to an attributable failure in the performance of an agreement between ASL and the other party shall in no event amount to more than 50% of the amount which ASL has invoiced or could invoice (exclusive of VAT) to the other party on the basis of the agreement. If the relevant agreement is a continuous performance agreement, the compensation shall amount to no more than 50% of the amount ASL has invoiced or could invoice the other party on the basis of the relevant continuous performance agreement excluding VAT. The compensation due to an attributable failure shall in no event be more than the price (exclusive of VAT) stipulated in the relevant agreement for the performance of ASL in the period of three months preceding the default by ASL. The sums and prices referred to in this article paragraph are reduced by the credit notes as stipulated and granted by ASL.
- In the event of a wrongful act by ASL, or by any employee of ASL, or by any subordinate for whom ASL can be held responsible by law, ASL is only liable for compensation of loss insofar this is the result of an intentional act or gross negligence. ASL’s liability for wrongful acts other than referred to in the previous sentence is expressly excluded.
- If and insofar despite the provisions of this article, any liability should rest with ASL, by whatever virtue, this liability is at all times limited to the contractual interest of the relevant agreement.
- Condition for any right to compensation arising is always that the other party notifies ASL of the loss in writing as soon as possible after it has arisen. Any legal action the other party might have towards ASL expires one (1) year after the termination and/or completion of the performance of the agreement to which the claim relates, save where the fact on which the legal action is based could not have been discovered during this period. In that case the relevant legal action expires one year from the moment at which the fact referred to has been discovered or could have been discovered by the other party.
Article 9. INDEMNITY
- The other party indemnifies ASL against any loss ASL might suffer as a result of claims by third parties relating to goods delivered or services rendered by ASL, including:
- claims by third parties, employees of ASL included, who in connection with the performance of an agreement suffer loss which is the result of acts or omission by the other party or unsafe situations in the company of the other party.
- claims by third parties who suffer loss which is the result of a defect in the goods delivered or services rendered by ASL which were used, changed or resold by the other party as an addition to, or in connection with, the goods or services of the other party, unless the other party proves that the defect is not the result of the use, change or reselling as referred to above.
Article 10. FORCE MAJEURE
- In the event of force majeure, ASL is entitled, without any judicial intervention, to suspend the performance of the agreement or to consider the agreement terminated wholly or in part without ASL being liable for any compensation to that end.
- Force Majeure here includes: every circumstance as a result of which the other party could no longer reasonably require ASL to perform the agreement. Force majeure includes in any case: war, threat of war, civil war, riot, flooding, wilful damage, fire, factory sit-in, strikes, lockout, excessive absenteeism of ASL personnel, transport difficulties, unforeseen technical complications, operational failures at ASL or its suppliers, breach of contract by its suppliers, as well as governmental measures including in any case import and export prohibitions and quota restrictions.
- If due to force majeure, the performance of the agreement has been delayed by more than three (3) months, the parties can come to an arrangement on the termination of the agreement, which includes in any case in a payment for costs incurred by ASL.
- If, at the commencement of the force majeure situation, ASL has already partially fulfilled its obligations under the agreement, ASL is entitled to invoice any performance already carried out separately and the other party is obliged to pay this invoice as if it were a separate transaction.
Article 11. COMPLAINTS
- Subject to the provisions elsewhere in these terms and conditions, complaints must be notified to ASL in writing eight (8) days after the goods have been delivered or the services rendered.
- If ASL considers the complaints justified, ASL is only obliged to undertake repairs free of charge or replace the defective (part of) goods or improve the services, without the other party being able to exercise any right to any compensation whatsoever. All replaced goods become the property of ASL. Defective goods must immediately be sent to ASL, carriage paid.
- Complaints concerning invoices must be submitted to ASL in writing within eight (8) days from the date of invoice.
- After the expiry of the terms referred to in paragraphs 1 and 3 of this article, the other party is deemed to have approved the delivered goods, the services rendered or the invoice respectively. From that time onwards complaints shall no longer be processed.
- Submitting a complaint never releases the other party from the payment obligations towards ASL as set out elsewhere in these terms and conditions.
Article 12. WARRANTY
- Unless expressly otherwise agreed in writing, ASL warrants the delivered new goods in respect of material and manufacturing defects for a period of 24 months after date of shipment ex works ASL. As regards the services rendered, the provisions of article 11(2) (Complaints) apply.
- ASL warrants that the new goods delivered by ASL, taking their nature into consideration, meet the usual standards of usefulness, reliability and durability and that the work is carried out in accordance with the standards of sound workmanship and in accordance with the regulations applicable to this end. In respect of goods which have not been produced by or on behalf of ASL, the extent of the warrant is determined by the warrant of the relevant supplier(s).
- Repairs which fall outside the framework of this warranty shall be charged by ASL.
- All ASL’s warranty obligations lapse if the goods are not, or have not, been used in accordance with their use or have been used improperly, the operating instructions have not been observed, the other party or third parties have carried out improper repairs, have made alterations or the numbers or seals have been disfigured or removed.
- If it becomes clear that the other party has wrongly claimed under the warranty, all inspection and associated costs are for the account of the other party.
- ASL’s obligation to repair the goods as referred to in this article outside of the Netherlands, is limited to at most the amount the repair would cost if it had been carried out in the Netherlands.
Article 13. RETENTION OF TITLE
- ASL remains the owner of all the goods delivered to the other party until such time the purchase price for these goods has been paid in full. If ASL has (also) rendered services, the retention of title remains in force until the other party has also fully paid the claims relating to these services. The retention of title also applies to claims ASL may obtain against the other party due to the failure of the other party to comply with one or more of its obligations towards ASL.
- As long as the ownership has not transferred to the other party, it may not pledge or grant any rights over the goods to third parties.
- The other party obliges itself in respect of delivered goods which, through payment, have transferred into the ownership of the other party and which are still in its possession, to on demand of ASL, render its assistance to the creation of a right of pledge (or have such created) as referred to in article 3:237 Dutch Civil Code as additional security for claims, other than those referred to in article 3:92(2) Dutch Civil Code, which ASL, for whatever reason, might have on the other party.
- The other party is obliged to keep the goods delivered subject to the retention of title with due care and identifiable as being the property of ASL.
- The other party is obliged for the duration of the retention of title to insure the goods against fire, explosion and water damage as well as against theft and to allow ASL inspection of the insurance policies on demand. All claims by the other party on the insurance companies pursuant to the insurances referred to shall, on demand of ASL, be pledged to ASL by the other party in the manner indicated in article 3:239 Dutch Civil Code as additional security for the claims of ASL on the other party.
- If the other party fails in the performance of its payment obligations towards ASL or ASL has good ground for fearing that the other party shall fail to comply with those obligations, ASL is entitled to repossess the goods subject to the retention of title. After repossession, the other party shall be credited their market value to the maximum of the original purchase price less the costs ASL has incurred during and in respect of the repossession.
Article 14. ADVICE
- In respect of agreements for the provision of advice, the project description as approved by the parties, if drafted, is decisive for the content and the extent of the advice of ASL.
- Advice is given by ASL to the best of its knowledge. ASL does not however accept any liability for advice given verbally or in writing.
- An advice by ASL never releases the other party (the client) of the obligation to carry out its own investigation into the suitability of advised processes or, in respect of goods, into their suitability for the intended purpose. The same applies to information on the composition of goods and application possibilities.
Article 15. MAKING GOODS AVAILABLE
- ASL can make goods available to the other party, goods on approval for example, or as temporary replacement of goods which are being repaired by ASL or for incorporation into equipment which is being produced by order of ASL.
- The other party is not entitled to use the goods ASL has made available for any other purpose than for which those goods are intended and suitable, to rent them out to third parties or to hand them over for free, to pledge them or to encumber or dispose of them in any other way. In the event of a breach of this prohibition, ASL is entitled to end this provision of goods and take back the goods made available. To this end the other party hereby grants ASL, for now and in the future, the authority to enter its buildings and sites. The other party shall at the end of the provision of the goods return them to ASL in the same condition as they had been received unless it concerns goods which in the meantime have been incorporated in equipment produced by order of ASL.
- ASL determines the manner of packaging, transport, security and storage of the goods it has made available. The other party is obliged to carry out the instructions as issued by ASL to this end. The other party is liable for the damage to the goods made available by ASL caused as a result of not properly carrying out ASL’s instructions.
- The other party is obliged to keep the goods made available insured for its own account. The other party shall, on demand of ASL, make the relevant insurance policies available for inspection. The other party is liable towards ASL for the damage to, or the loss of, the goods made available which were not (fully) covered by the insurance.
- The other party is liable towards third parties for nuisance, personal injury or death, caused by the use of or the processing of the goods made available to the other party.
- ASL is and remains at all times the owner of the goods made available. If and as soon as a third party exercise any rights in respect of the goods made available, including seizure, the other party is obliged to notify ASL of these claims in writing.
- The warranty provisions do not apply to goods made available.
Article 16. PAYMENT
- Unless expressly otherwise agreed in writing, payment shall be a net cash payment on delivery, without any reductions or setoff. If ASL has explicitly and in writing agreed a different manner of payment than a cash payment with the other party, the payment shall be a net payment by means of a deposit or transfer into the bank account number as referred to on the invoice, without any reductions or setoff, within the term set by ASL but at the latest within 30 days of the invoice date. The value date as indicated by the bank shall be viewed as the payment date.
- Every payment made by the other party shall in the first instance serve to settle any outstanding interest and any collection costs incurred by ASL and then to settle the oldest outstanding invoice, even if the other party states that the payment relates to a later invoice.
- In the event the other party:
- is put into liquidation/declared bankrupt, assigns the estate, applies for a moratorium, its property is wholly or partly seized;
- dies or is placed under guardianship;
- does not fulfil an obligation to which is it subject by law or these terms and conditions;
- fails to pay an invoice amount or part thereof within the set term;
- ceases or transfers its company, or an important part thereof, or proceeds to change the objectives of its company: ASL has, by the mere occurrence of one of the circumstances referred to, the right to either consider the agreement terminated without any judicial intervention being required, or to suspend the (further) performance of the agreement or to demand immediate payment of any sum, owed by the other party on the basis of goods delivered by ASL or services it has rendered, to the full amount without any warning or notice of default being required, without prejudice to ASL’s right to damages, interest and costs.
- ASL is at all times entitled to demand that the other party provides (additional) security for the performance of its obligations. Non-compliance with a written demand from ASL to this end entitles ASL to demand immediate payment of the (remaining) claim or to declare the agreement terminated without judicial intervention with immediate effect, without prejudice to the right of ASL to compensation.
- If the other party is both debtor and creditor of ASL, ASL is entitled to offset its debt.
Article 17. INTEREST AND COSTS
- If payment has not taken place within the set term, the other party is in default by operation of law and must, from the date of the invoice, pay interest of at least 1% for each (part of a) month on the still outstanding amount, even if a postponement of payment is agreed.
- All judicial and extrajudicial costs to be incurred are for the account of the other party, even to the extent that these costs exceed that what would have been due on the basis of the statutory regulations in respect of legal costs. The extrajudicial costs are at least 15% of the sum, including the aforementioned interest and costs, due by the other party with a minimum of € 250.
Article 18. CONFIDENTIALITY
- Subject to the provisions of these terms and conditions, ASL and the other party, hereafter referred to as “Parties”, are obliged both during the term of an agreement and afterwards to keep confidential information of which they become aware secret and not to disclose such in any way whatsoever to third parties and/or make it available and only use it for the purpose for which the information has been provided to the parties. Third parties include any persons working in the organisation of the parties who do not necessarily have to be made aware of the information.
- Confidential in these terms and conditions means:
- a. all written and verbal information or information provided directly or indirectly in any other way which is indicated as such and/or of which Parties know or reasonably should have understood that it is confidential
- b. all product, marketing, customer and/or other company information which is indicated as such or of which Parties know or reasonably should have understood that it is confidential, irrespective of the manner in which they are provided.
- c. all documentation, data, drawings, benchmark tests and data, specifications, object codes, software and source codes, production methods and technology indicated as such or of which Parties know or should reasonably have understood that it is confidential, irrespective of the manner in which they are provided.
- d. Any copy, in whatever form, of the above.
- The obligations of the Parties set out above, do not apply in respect of confidential information of which it can be demonstrated that it (i) is generally known and/or accessible to the public or (ii) it was already known and not subject to any duty of confidentiality before one party provided it to the other party.
Article 19. APPLICABLE LAW AND DISPUTES
- Dutch law applies to all offers and agreements as well as to their performance.
- Disputes shall in the first instance be resolved by the court within the business area of ASL in accordance with the normal rules of jurisdiction.
Article 20. AMENDEMENTS OR ADDITIONS TO THESE TERMS AND CONDITIONS
- ASL is at all times entitled to amend and/or supplement these terms and conditions.
- Amendments and/or additions shall come into force after they have been brought to the attention of the other party and have no retrospective effect.
- If any provision of these terms and conditions is deemed no (longer) legally valid, this does not affect the other provisions of these general terms and conditions and the parties are obliged to determine a new provision as soon as possible whereby the objective must be as close to the “old” provision as possible.