General Terms and Conditions Ap-art B.V.
Article 1 – Definitions
1. Unless expressly stated otherwise, the following terms will have the meanings mentioned below in these General Terms and Conditions:
– Ap-art: the user of the General Terms and Conditions;
– Customer: the person who has accepted the validity of these General Terms and Conditions by signing a document or by some other means.
– Products: all goods produced and/or supplied by Ap-art.
– Services: all Services supplied by Ap-art.
Article 2 – Scope of application
1. The provisions of these General Terms and Conditions apply to all offers, quotations and agreements of Ap-art, and also to agreements for the performance of which third parties are engaged.
2. Unless otherwise specifically agreed in an agreement, these General Terms and Conditions will apply.
3. Should one or more of the provisions in these General Terms and Conditions be invalid or nullified, the other provisions of these General Terms and Conditions will remain in full force. In this case, Ap-art and the Customer will enter into consultation to agree new provisions to replace those that are invalid or nullified, whereby, if and in so far as is possible, consideration shall be given to the purpose and tenor of the original provision.
4. Should one or more of these terms, in whole or in part, violate any legal provision, or be invalidated by a court decision, the other terms will nonetheless remain in full force.
Article 3 – Offers, quotations and prices
1. The quotations made by Ap-art are without any obligation; Ap-art is only bound thereto after it has accepted the order in writing or proceeds with the fulfilment of the agreement.
2. The prices in said offers and quotations exclude VAT and other statutory levies and delivery charges plus any transport and packing costs, unless expressly stated otherwise.
3. In the event that acceptance differs (on minor points) from the quotation offer, Ap-art will not be bound thereby. In that case, the agreement shall not be formed in accordance with the acceptance including such divergences, unless Ap-art specifies otherwise.
4. A combined/composite price quotation does not oblige Ap-art to deliver some of the Products included in the offer or quotation for a corresponding part of the price quoted.
5. Offers or quotations do not automatically apply to repeat orders.
6. Dispatch of documents, price lists and/or price quotations beyond the scope of a written quotation, do not oblige Ap-art to delivery or acceptance of an order.
7. If Ap-art has agreed a fixed purchase price with the Customer, Ap-art is nonetheless entitled to increase the price in the instances as specified in paragraph 2 of this Article.
8. The prices quoted are based on prices, wages and levies applicable at the time of the offer or quotation. Changes in exchange rates, wages, cost prices of the raw materials, materials, parts, transport, insurance premiums, tax liabilities, social insurance contributions, import duties, and other imposed statutory levies, or statutory levies to be imposed, can be passed on until the formation of the agreement.
9. If the price increase is more than 10%, the Customer is entitled to dissolve the agreement, unless this price increase is the result of a change in the agreement.
Article 4 – Payment
1. Payment must be made in full upon placement of the order and before delivery, unless otherwise agreed. Payment within 14 days of invoice date.
2. If payment by instalments has been agreed and one instalment has not been paid on time, the Customer – without the need for a demand for payment or notice of default – must pay 1% interest per month from the date on which payment should have taken place until the date of actual payment, unless the statutory interest rate is higher, in which case the statutory rate applies.
3. If the Customer fails or defaults in the (timely) performance of their obligations, all reasonable costs required to obtain settlement out of court will be for the account of the Customer. In any event, the Customer shall owe collection costs in the event of a financial claim. Collection costs are calculated in accordance with the collection rate as advised by the Netherlands Bar Association in debt collection.
If Ap-art has incurred higher costs that were reasonably necessary, it must be reimbursed for these as well.
Any reasonable court and legal costs incurred are also for the account of the Customer.
4. In the event of the Customer going into liquidation, being declared bankrupt, having their assets seized or having their payments suspended, any sums that the Customer owes Ap-art will be payable immediately.
5. If payment is not made within 30 days the guarantee on the Products will lapse (see Article 10). The Customer shall owe default interest amounting to what is specified in law and be obliged to pay a fine received per invoice.
Article 5 – Delivery
1. Delivery is ex warehouse of Ap-art.
2. If delivery is on the basis of ‘Incoterms’, the ‘Incoterms’ that are valid at the time the agreement is concluded will apply.
3. The Customer is obliged to take delivery of the Products and/or Services at the time that Ap-art supplies them to the former, or arranges such, or at the time when these are made available to the former in accordance with the agreement.
4. If the Customer refuses to take delivery of the goods, or is late supplying information or instructions necessary for delivery, Ap-art is entitled to store the goods at the risk and expense of the Customer. Ap-art is in any case entitled to bill for storage costs if the Customer does not take delivery of the Products within a month of the Products being ready.
5. If the Customer does not take delivery of the goods at the time mentioned in paragraph 3, the obligations on the part of Ap-art shall lapse and there will be no refund. Cancellation of the order after production has already begun is not possible.
6. If the Products are delivered, Ap-art is entitled to apply delivery charges.
7. If Ap-art requires information from the Customer as part of performance of the agreement, the delivery time will start after the Customer has supplied this to Ap-art.
8. If Ap-art has stated a deadline for delivery, this is for reference only. A quoted delivery time does not, therefore, constitute a firm deadline. If the delivery time specified by Ap-art cannot be met, Ap-art will inform the Customer of this as soon as possible, stating the new anticipated delivery time, without the Customer having any right to claim compensation in any form or proceeding to dissolve the agreement or demand fulfilment of the agreement.
9. Ap-art is entitled to deliver the Products in parts, unless agreed otherwise. Ap-art is entitled to invoice what has been delivered separately.
10. If it has been agreed that the agreement will be implemented in stages, Ap-art may suspend performance of the parts that belong to a subsequent stage until the Customer has provided written approval of the results of the preceding stage.
11. The Customer will take all the necessary measures to prevent damage to other equipment, products and manufacturing procedures and injury to persons which might arise as a result of the work to be carried out by Ap-art.
12. Delay in the commencement or in the continuation of the work as a result of insufficient resources or resources that are not provided on time, on the part of the Customer, or as a result of other factors which can reasonably be at the Customer’s own risk, are at the latter’s expense.
Article 6 – Models and demonstrations
1. If the Customer has been shown or provided with a model or a demonstration, the assumption is that such has been given by way of an example only, unless the parties agree expressly that the product to be delivered shall correspond with it.
Article 7 – Complaint
1. The Customer is obliged to inspect the goods at the time of delivery (or arrange for such). Here, the Customer must examine whether quality and quantity of the goods correspond with what has been agreed, at any rate whether this meets the requirements applicable thereto in the ordinary course of trade.
2. Any visible defects must be reported immediately to Ap-art on delivery with a note on the delivery slip. Defects which are not visible must be notified within three weeks of discovery and at the latest within three months of delivery.
3. If in accordance with the previous paragraph a complaint is filed in due time, the Customer remains obliged to accept and pay for the Products purchased. In consultation with Ap-art, if necessary, the Customer can arrange for repair work to be carried out by or via Ap-art.
Article 8 – Amendment of the agreement
1. If, during performance of the agreement, it becomes apparent that changes and/or supplements are deemed necessary for the work to be carried out in a proper manner, Ap-art is entitled to adapt the agreement accordingly.
2. If the parties agree that the agreement will be amended and/or supplemented, this may affect the time frame for completion of performance. Ap-art will inform the Customer of this as quickly as possible.
3. If the change and/or supplement to the agreement has an effect in financial and/or quality terms, Ap-art will inform the Customer about this in advance.
4. If a fixed rate has been agreed, Ap-art will indicate as far as possible the extent to which the change or supplement to the agreement will lead to an increase in this rate.
5. Notwithstanding the conditions governing this matter, Ap-art will not be able to charge additional costs if the change or supplement is the result of circumstances that can be attributed to it.
Article 9 – Retention of title
1. Until such time as the Customer has met all their payment obligations, ownership of the Products supplied remains with Ap-art. The Customer is obliged to store goods supplied subject to retention of title with due care and as the identifiable property of Ap-art.
2. Until ownership of the delivered items passes to the Customer, the latter must not pledge or grant a third party any other right to them, except within the normal course of their business. The Customer undertakes, upon first request from Ap-art, to establish a right of pledge on the claims that the Customer acquires or will acquire on their customers pursuant to the resale of goods.
3. If the Customer fails to meet their payment obligations, or fails to do so on time or in the correct manner, Ap-art is entitled, without notice of default or judicial intervention, to undo what has been done and/or to take back from the Customer the Products supplied. The Customer will cooperate fully with Ap-art by opening the room containing the Products, or by handing over the keys which allow access to such a room. If the Products are in a place, leased by a third party or otherwise occupied, such that the cooperation of this third party is required to gain access, the Customer will authorise Ap-art to obtain the cooperation of this third party.
Article 10 – Guarantee
1. Ap-art guarantees that the Products and/or Services comply with the agreement, the specifications stated in the offer, the reasonable requirements of soundness and/or usability and the legal provisions and/or government regulations in force on the date of formation of the agreement.
2. The guarantee referred to under paragraph 1 also applies if the Products to be delivered are intended for use abroad and the Customer has clearly informed Ap-art of this use in writing at the time of concluding the agreement.
3. The guarantee referred to under paragraph 1 is valid for two years after delivery, whereby this concerns the first year on-site guarantee and concerns the second year bring-in guarantee. Products are also deemed to have been supplied if, at the Customer’s request, the Products are stored (temporarily) at Ap-art.
4. If the Products to be supplied do not meet the requirements as stated in paragraph 1 of this Article, Ap-art will replace the Products or have the Products repaired within a reasonable period after receipt of written notification on this matter by the Customer, at the discretion of Ap-art. In case of replacement, the Customer hereby undertakes to return the replaced Products to Ap-art and transfer ownership to Ap-art.
5. The guarantee does not apply if the defect has arisen as a result of injudicious or unauthorised usage or if, without written permission of Ap-art, the Customer or third parties have made changes to the Products, or attempt to do so, or have used these for purposes for which the Products are not intended or have placed them in another location or in different circumstances to those for which the Products were designed.
6. If the guarantee provided by Ap-art concerns an item that has been produced by a third party, the guarantee is limited to the guarantee given by the producer of the item.
7. A claim under the guarantee is excluded in the following instances:
a. faults due to external influences, including accident, misuse, neglect or influence of water;
b. failure to adhere to the stipulated installation and assembly instructions;
c. on account of improper/abnormal or irresponsible use of the Products supplied;
d. if repairs and/or technical changes are effected on the Products by third parties without express consent of Ap-art;
e. if (on the request of Ap-art) no original, dated sales receipt/invoice can be presented;
f. if any serial number on the guarantee certificate and/or product has been changed, damaged or removed;
g. if the invoice has not been returned within ten days to Ap-art or if the Customer has failed to meet their obligations under these General Terms and Conditions;
h. if the cause of the faults cannot clearly be demonstrated.
8. Ap-art provides a guarantee of up to two years within the Netherlands on products and on components supplied by and installed by Ap-art, for every delivery, unless agreed otherwise. This relates to the first year on-site guarantee and the second year bring-in guarantee. A two-year bring-in guarantee applies to separate product components supplied by Ap-art.
No guarantee applies to the Customer’s products and product components (whether or not fitted by Ap-art). If products and product components are fitted by Ap-art, the Customer is responsible for providing sufficient and correct information to Ap-art about the parts to be fitted and there is no guarantee if fitted components become defective due to improper fitting or incorrect design as a result of failure to provide relevant information by the Customer.
If specific parts or complete products do not work or work partially and they have to be repaired (as set out in this Article), no replacement part will be fitted by the Customer.
9. If the Products have been delivered and/or are used abroad the guarantee period is subject to a revised service. Ap-art provides a maximum guarantee of 2 years for each delivery. Here, the Products will be sent to Ap-art by and at the expense of the Customer. Ap-art will repair or replace the components or complete Products which do not work or work partially under the guarantee (as described in this Article). The Customer is liable for the costs of the return shipment. Ap-art will not install at the Customer’s any replacement product during the repair period.
Article 11 – Suspension and dissolution
1. Ap-art is authorised to suspend fulfilment of the obligations or dissolve the agreement if:
a. The Customer fails to fulfil the obligations from the agreement or fails to do so in full;
b. After concluding the agreement circumstances have come to the attention of Ap-art, giving good reason to fear that the Customer will not fulfil the obligations. If there is good reason to fear that the Customer will only fulfil the obligations partially or not properly, the suspension is only permitted if and in so far as any shortcoming would justify such action.
c. The Customer, when concluding the agreement, is requested to provide security for the full settlement of their obligations from the agreement and this security is not furnished or is inadequate. As soon as security has been provided, the authority to suspension shall lapse, unless this payment is unreasonably delayed.
2. Also, Ap-art is authorised to dissolve the agreement, or arrange for such, if circumstances arise which are such that fulfilment of the agreement is not possible or can no longer be demanded on the basis of reasonableness and fairness, or if circumstances otherwise arise which are such that unchanged existence of the agreement cannot reasonably be expected.
3. If the agreement is dissolved any sums that the Customer owes Ap-art will be payable immediately. If Ap-art suspends fulfilment of the obligations, it shall retain its rights under the law and the agreement.
4. Ap-art reserves the right to demand compensation at all times.
Article 12 – Return of items made available
1. If Ap-art has made available items to the Customer for performance of the agreement, the Customer is obliged to return such items free of faults and in full in their original condition within 14 days upon first request of Ap-art. If the Customer fails to meet this obligation, all resulting costs will be at their expense.
2. If the Customer, for any reason, after being warned to do so, remains in default in respect of the obligation mentioned under paragraph 1, Ap-art has the right to recover any ensuing damage and costs, including the costs of replacement, from the Customer.
Article 13 – Liability
1. If Products supplied by Ap-art are defective, the liability of Ap-art vis-à-vis the Customer is limited to what is provided for in these terms under ‘Guarantee’.
2. If Ap-art is liable for direct damage, this liability is limited to a maximum amount of the payment to be paid by the insurer of Ap-art, at any rate to a maximum of the invoice amount, or the section of the agreement to which liability pertains.
3. Direct damage shall solely mean:
– reasonable costs to determine the cause and scope of the damage, in so far as the determination relates to direct damage within the meaning of these terms and conditions;
– any reasonable costs incurred to have Ap-art’s faulty performance meet the conditions of the agreement, unless this shortcoming cannot be attributed to Ap-art;
– reasonable costs incurred to prevent or limit damage, in so far as the Customer demonstrates that these costs resulted in limitation of direct damage as referred to in these General Terms and Conditions.
Direct damage shall not mean: costs, as referred to above, which are incurred abroad. In the event of damage which arose abroad, the Customer must transport the faulty Products to Ap-art in accordance with Article 10 paragraph 9, whereupon Ap-art will replace or repair the components or complete Products.
4. Ap-art is not liable under any circumstances for indirect damage, including consequential loss, lost profits, missed savings opportunities, damage on account of stagnation of business and the like.
5. The limitations of liability contained in these terms and conditions for direct damage do not apply if the damage can be attributed to intent or deliberate recklessness on the part of Ap-art or its employees.
6. Ap-art is not liable for refusing equipment, and also technical faults.
7. Ap-art is not liable for the inability to install the necessary software and for the possibility that the programme contains a bug or programming error. Ap-art is also not liable if the programme works, or has worked, on other computers.
Article 14 – Transfer of risk
1. The risk of loss or damage of the Products which are the subject of this agreement shall transfer to the Customer at the time these products are legally and/or actually supplied to the Customer and, therefore, in the control of the Customer or a third party to be appointed by the Customer.
Article 15 – Force majeure
1. A shortcoming in the fulfilment of any obligation cannot be attributed to either party if they are hindered to this end as a result of a circumstance for which they can neither be held responsible, nor bear the expenses thereof in accordance with the law, legal act or generally accepted standards.
2. The term “force majeure” is understood to mean any event or circumstance – even if this was anticipated at the time the agreement was concluded or the order was assigned – on account of which the delivery and/or manufacture is hindered or made impossible, or has such an effect on the production of and/or delivery by Ap-art, that the fulfilment by Ap-art is rendered so expensive or difficult from an economic point of view that reasonably the (further) performance of the agreement or order cannot be demanded of Ap-art under the same terms.
3. Ap-art also has the right to invoke force majeure if the situation that prevents (further) honouring of an obligation occurs after Ap-art should have honoured said obligation.
4. The parties can suspend the obligations under the agreement whilst the period of force majeure continues. If this period lasts longer than two months, either party is entitled to dissolve the agreement, without obligation to compensate for any loss to the other party.
5. In so far as Ap-art has partly performed or will be able to perform its obligations arising from the Agreement at the time when the situation of force majeure occurs, and that part performed or to be performed is of independent value, Ap-art will be entitled to invoice the part performed or to be performed separately. The Customer is obliged to pay this invoice as if it were a separate contract.
Article 16 – Indemnifications
1. The Customer indemnifies Ap-art against claims from third parties in relation to rights of intellectual property governing the materials or data provided by the Customer, which are used in performance of the agreement.
2. If the Customer provides information carriers, electronic files or software to Ap-art, the former will guarantee that the information carriers, electronic files or software are free of viruses and defects.
Article 17 – Intellectual property
1. All intellectual (property) rights, expressly including but not limited to copyrights and design rights, which may or will be exercised – whenever and wherever – in respect of the Products including expressly the Products designed for the Customer and/or all other deliverables by Ap-art for the Customer based on the agreement or related agreements, rest with Ap-art.
In so far as for the transfer of such rights a further deed were to be required, the Customer hereby authorises Ap-art irrevocably to draw up such a deed and sign it on behalf of the Customer, without prejudice to the obligation on the part of the Customer, upon the first request of Ap-art, to cooperate with the transfer of such rights, without being able to set conditions.
2. The Customer is not allowed to make changes to the Products, unless otherwise agreed in writing in view of what has been delivered.
3. Designs, sketches, drawings, films, software and other materials or (electronic) files created by Ap-art remain the property of Ap-art, regardless whether they have been supplied to the Customer or to third parties, unless otherwise agreed.
4. All documents supplied by Ap-art, such as designs, sketches, drawings, films, software, (electronic) files, etc. are exclusively intended to be used by the Customer and may not be reproduced, published or brought to the attention of third parties by the Customer, without prior permission of Ap-art, unless otherwise ensuing from the nature of the documents provided.
5. Ap-art also reserves the right to use any new knowledge it has acquired during the performance of the activities for other purposes, provided no confidential information is disclosed to third parties in the process.
6. Per breach of these provisions, the Customer owes Ap-art a fine of € 1,000 per day. This penalty can be claimed in addition to statutory damages.
Article 18 – Confidentiality
1. Both parties are bound to maintain confidentiality in respect of all confidential information they have obtained from each other in the context of the agreement, or from another source. Information is regarded as confidential if it is announced as such by a party, or if this is evident from the nature of the information in question.
2. If, based on a statutory provision or a judicial ruling, Ap-art is obliged to furnish confidential information to third parties designated by the law or the competent court, and Ap-art is unable to avail itself in this regard of a legally defined privilege or one recognised or granted by the competent judge, Ap-art shall not be required to pay compensation or damages and the Customer shall not be entitled to dissolve the agreement on the grounds of any damage arising as a result.
Article 19 – Restriction on takeover of personnel
1. For the duration of the agreement and twelve months after termination thereof, the Customer will not, without proper prior consultation on the matter, employ any of Ap-art’s employees or employees of companies, whose Services have been engaged by Ap-art, who have been engaged in the performance of the agreement, directly or indirectly.
Article 20 – Obligations on the part of the Customer
1. The Customer is obliged to use and maintain the equipment as described in the individual agreement in accordance with the instructions for use supplied by Ap-art or the manufacturer.
2. The Customer will provide Ap-art with all the information it needs in so far as this is required in order to carry out the work.
3. The Customer will grant Ap-art access to the use of the equipment, documentation and any hardware and software, in so far as this is required to carry out the work.
4. The Customer will enable Ap-art to carry out the work and make available the necessary facilities to this end.
5. The Customer is obliged after transfer of ownership to ensure the responsible and environmentally-friendly disposal of the product if necessary.
Article 21 – Exemption
1. Ap-art is not obliged to repair equipment if the equipment has reached the end of its service life; this is the case, but not limited to, if no further parts are supplied for the equipment.
2. Ap-art is also not obliged to repair the equipment, if the repair costs, entirely at the discretion of Ap-art, are not proportionate to the book value of the equipment.
3. Expressly excluded from the agreement are the repair and overhaul of equipment if this is a result of:
– incompetent or unauthorised usage of the equipment;
– power outage, fire and theft, water damage, strikes or other external causes;
– failure to carry out carefully what is described in the documentation supplied to the Customer, daily maintenance in so far as must be carried out by the Customer or failure by the Customer to flag up improper functioning of the equipment;
– unprofessional repairs or work, changes or additions to the equipment by the Customer or by third parties;
– change to the location where the equipment was originally located, unless this relocation has been done by Ap-art or as instructed by Ap-art.
Article 22 – Working hours
1. The work will be carried out within the working hours in force for Ap-art, i.e., from Monday to Friday inclusive, except public holidays and mandatory days off.
2. If an employee of Ap-art is not able to start the work at the time agreed for a reason attributed to the Customer, or unable to do such work on a continuous basis, the additional costs arising, including extra time/waiting times, will be charged to the Customer.
Article 23 – Special lease terms
1. Ap-art is only liable for damage suffered by the Customer, in so far as this is covered by the insurance taken out at the commencement of the lease.
2. Our rental prices exclude VAT and insurance costs. The rental price is increased by the insurance costs (including for transport, set-up and connection of equipment). Unless otherwise agreed, the Products will be transported by us. Rental prices of equipment on subsequent days are only valid for a continuous lease term. Any Services to be rendered by us for leased equipment will be charged on the basis of actual costs incurred. We reserve the right at any time to demand a partial or full advance payment of the agreed rental price.
3. Notwithstanding Article 11 of these general terms and conditions, Ap-art shall have the right to suspend, terminate or dissolve the rental agreement. Also, Ap-art is entitled to impose additional requirements on the location if it is found on site that it can be readily adapted.
Article 24 – Applicable law and disputes
1. Dutch law applies to all agreements between Ap-art and the Customer.
2. All disputes in matters relating to these terms and conditions will, without prejudice to the parties’ authority to obtain decisions from the President of the District Court in interim injunction proceedings, be subject to the judgment of the ordinary courts in The Hague.
3. The parties shall not appeal to the courts until they have made every effort to resolve such dispute amicably.
Article 25 – Changes to the terms and conditions and location
1. These terms and conditions are filed with the Chamber of Commerce in Haaglanden. Ap-art is registered with the Chamber of Commerce in Haaglanden under no. 27197027.
2. These terms and conditions can also be found on the Ap-art website, www.ap-art.nl. The last version filed or the version that was applicable at the time when the agreement was concluded will apply at all times.
3. This version is from January 2019.