General Terms and Conditions
MAISON VAN DEN BOER B.V. and its subsidiaries
ARTICLE 1 DEFINITIONS
In these Terms and Conditions the following terms have the meaning as defined, unless otherwise is expressly stated:
User: Maison van den Boer B.V. and its subsidiaries, the user of the General Terms and Conditions, contractor, seller, lessor;
Client: the counterparty of user, buyer, lessee;
Agreement: the agreement between user and client;
The work: the total of the work agreed between user and client, and the materials supplied by user for that purpose.
ARTICLE 2 GENERAL
2.1 The provisions from these General Terms and Conditions apply to each offer, quote and agreement between User and Client, insofar as they have not been derogated from expressly in writing by parties.
2.2 The applicability of the General Terms and Conditions of Client is hereby expressly rejected, unless parties have agreed otherwise in writing. If the General Terms and Conditions of parties apply concomitantly, the provisions in the General Terms and Conditions of User shall prevail in the event that provisions in the General Terms and Conditions of User and Client are incompatible.
2.3. If one or more provisions in these General Terms and Conditions are invalid or nullified, the other provisions therein shall remain in force.
2.4 If User concludes agreements with Client more than once, these General Terms and Conditions shall apply to all subsequent agreements, irrespective of whether or not they have been declared applicable explicitly.
2.5 These General Terms and Conditions shall apply, unless they are derogated from in the agreement.
2.6 The most recent valid version of the Uniforme Voorwaarden Horeca [Uniform Conditions for the Hotel and Catering Industry] as deposited with the Court in The Hague shall apply in any situation not provided for in these General Terms and Conditions and/or the agreement between User and Client.
ARTICLE 3 OFFERS, QUOTES AND AGREEMENTS
3.1 All offers, in whatever form, are non-binding, unless a term for acceptance is stated in the offer. Client shall remain bound by its order, insofar as that order has not been rejected by User.
3.2 User reserves the right to refuse any instructions and/or orders, without stating its reasons.
3.3 Agreements whereby User is one of the parties shall be regarded as concluded only:
a) after an agreement prepared for that purpose has been signed by both parties; or
b) after and insofar as User has accepted an order in writing, and said written acceptance has been signed by Client and returned to User within 21 days of the dispatch date, but no later than 14 days prior to the agreed date of the implementation of the agreement; or
c) through commencement of the work.
3.4 If Client gives User a verbal order, such shall also be considered an agreement, and Client shall be bound by this. In the event of verbal agreements, the invoice shall be deemed to reflect the agreement correctly and in full, unless a complaint is received within 14 days of the invoice date.
3.5 The deadlines mentioned in the previous paragraphs are absolute.
3.6 If the acceptance derogates from the offer included in the quote, it shall not be binding on User. In that case the agreement shall not enter into force in accordance with said derogating acceptance, unless User states otherwise.
3.7 If Client concludes the agreement on behalf of or at the expense of another, natural person, it declares - by signing the contract - that it is authorised to do so. In addition to that other, natural person, Client shall be severally liable for all the obligations arising from that agreement.
3.8 The prices in the aforementioned offers and quotes are in Euro ex VAT and any other government charges and fees, and are also exclusive of transport and removal costs, unless otherwise has been expressly stated.
3.9 Unless otherwise stated, all prices quoted apply subject to amendments.
3.10 Unless otherwise stated, the prices offered and agreed by User are based on the price basis of materials, ingredients, transport costs, wages, insurance premiums, tax, national insurance contributions, import duties and other price-defining factors, applicable on the day when the quote is dispatched, unless the agreed prices derogate from the quote on the basis of which the agreement has been enforced.
3.11 In the event of an increase in one or more of the cost price defining factors, User shall be entitled, at its own discretion, either to charge a proportional increase to Client, or to cancel the agreement, insofar as it has not been implemented, without proof of default and without a right to compensation, on the understanding that Client, acting in the capacity of consumer, shall be entitled to dissolve the agreement at all times if the price stipulated by User is increased within three months of concluding the agreement.
3.12 The payment of any surcharge on the basis of this article shall take place at the same time as that of the last instalment of the principal sum.
3.13 A composite quotation does not oblige User to comply with part of what is stated in the offer or quote against a corresponding percentage of the stated price;
3.14 Any models, images, drawings, figures, measurements, weights, user instructions or descriptions included in the offer / advertisements / price lists are as accurate as possible, but they serve as an indication only and are therefore not binding on User, unless it is expressly agreed that the product to be delivered shall correspond to them in full.
3.15 Without permission from User, it is not permitted to show or present any drawings, written ideas, images and/or quotes provided by User to third parties, or to use them for the manufacture of equal or similar items and/or products.
3.16 The documents referred to in the previous paragraph remain the property of User. User shall be entitled at all times to demand that the aforementioned documents be returned.
ARTICLE 4 FULFILMENT OF THE AGREEMENT
4.1 User shall fulfil the agreement to the best of its knowledge and ability, and in accordance with the requirements of good workmanship. It shall do so on the basis of the latest scientific information available in the Netherlands.
4.2 User determines the manner in which the agreement is to be fulfilled, unless otherwise has been agreed expressly in writing between parties.
4.3 If and insofar as such is required for the proper fulfilment of the agreement, User shall be entitled to outsource certain activities to third parties.
4.4 User accepts the order on the condition that any permits, exemptions and awards, for which Client shall be responsible, are granted prior to commencement of the work.
4.5 If Client has reserved the right to supply certain materials and/or fulfil certain parts of the agreement, Client shall be liable if the supply or fulfilment thereof does not take place in good time.
4.4 User shall not be liable for any damage, of whatever nature, resulting from the fact that User has applied incorrect and/or incomplete specifications supplied by Client, unless User should have been aware of such incorrectness or incompleteness.
4.5 If the commencement or progress of the work is delayed by factors for which Client is responsible, any damage and expenses on the part of User resulting therefrom must be paid by Client.
4.6 If User or third parties engaged by User under the terms of the order undertake work at the location of Client or at a location specified by Client, the latter shall provide, free of charge, the facilities as required within reason by the relevant staff.
4.7 The costs of the required electricity, gas, water, etc. shall be payable by Client.
4.8 Client shall ensure in good time that the work which does not form part of the order to User has been completed in accordance with the requirements of User, and at such a time that the delivery and assembly of the required inventory and goods is not subject to delays.
4.9 Client shall ensure that access to the rooms where User undertakes work is unrestricted and that in general the work on location can take place smoothly and without disruption.
4.10 Client indemnifies User against any claims from third parties, which suffer damage in connection with the fulfilment of the agreement, and which damage is attributable to Client.
ARTICLE 5 DELIVERY
5.1 Delivery of goods and materials takes place at the location where User is to undertake the work, unless otherwise has been agreed.
5.2 Client must accept the items at the moment when User delivers / has them delivered to Client, or at the moment when they are made available to Client in accordance with the agreement.
5.3 Client shall take any necessary measures to unload the goods quickly.
5.4 User is not responsible for the storage method of Client. If Client has failed to take measures in good time for receiving the goods, User shall be entitled to unload and store those goods at the expense and risk of Client, whereby it has then met its delivery obligation.
5.5 User reserves the right to deliver in instalments.
ARTICLE 6 AMENDMENT OF THE AGREEMENT
6.1 Any amendments to the order shall be regarded as additional work if it leads to additional costs for User, and as less work insofar as it leads to fewer costs. Additional work shall be added in fairness to the payment of the principal sum or the final instalment thereof, on the basis of the conditions set out prior to commencement. Less work shall be settled only if User has agreed thereto in writing in advance.
6.2 Any amendments to the agreement must be signed by Client and returned within 14 days of the date of the amendments, but not later than 72 hours prior to commencement of the work.
6.3 User reserves the right to charge additional costs for any amendments to the agreement announced by Client within a period of 7 days prior to receipt. Those amendments are confirmed in writing in advance.
ARTICLE 7 MAKING AVAILABLE A MEMBER OF STAFF
7.1 Unless otherwise agreed, Client shall provide the necessary staff.
7.2 If User assists in recruiting staff, it shall charge a payment for this which is to be agreed in further detail.
7.3 The member of staff shall carry out the instructions of Client to the best of his knowledge and ability, and in accordance with the requirements of good workmanship and at the risk and responsibility of Client.
7.4 The member of staff shall follow up the orders and instructions of Client once they have been specified to him and insofar as they are necessary for the implementation of the order.
7.5 Client indemnifies User against any claims as defined in this article, should such claims be recovered from User.
7.6 Any liability of User for any damage caused by the member of staff to Client or third parties is expressly precluded. If User is nevertheless held liable for any damage caused by the member of staff, Client shall indemnify User against that liability. Client must also be adequately insured as regards the aforementioned indemnification and the liabilities that form the basis thereof.
7.7 User shall never be liable by virtue of any contracts concluded by the member of staff with Client or third parties. Client indemnifies User against any claim in that respect, including any liability of User as the member of staff's employer.
7.8 The exemption as referred to in this article also includes all legal and non-legal expenses of User.
7.9 Client shall refrain from the direct or indirect (via third parties) recruitment of members of staff of User, with a view to offering them employment. If members of staff of User terminate their employment within 12 months of the fulfilment date of an order for Client in order to enter into a labour relationship with other clients, User shall take the liberty to invoice a development fee of EUR 45,000 to the relevant client.
ARTICLE 8 COMPLAINTS
8.1 User must be notified of any nonconformities in the delivery of goods or complaints about the work undertaken by Client immediately after such nonconformities have been identified. Client must also, within 8 working days of its identification, notify User of the nonconformity or the complaint, while scrupulously stating the nature of and basis for the nonconformity/complaint, and also state when and how it had been identified.
8.2 If the complaint is made in good time and if, according to User, it is justified, User shall rectify the shortcomings or nonconformities within a reasonable period of time. However, Client shall remain liable to pay for the completed work and the bought goods.
8.3 If undertaking the agreed work at a later date is no longer possible or advisable, User shall be liable only within the limits of the provisions included below under "Liability".
8.4 If a complaint is not made within good time or if Client has commissioned the products/work fitted, undertaken or delivered, the goods shall be deemed to have been delivered in a sound condition, and the work shall be deemed to have been undertaken properly.
8.5 Any complaints about invoices must also be submitted in writing, within 8 days of the invoice date.
8.6 After the expiry of the stated deadlines, Client shall be deemed to have approved the performance or invoice.
ARTICLE 9 CANCELLATION
9.1 If an order issued to User is cancelled in whole or in part, for whatever reason, Client must pay indemnification to User in accordance with the list below, calculated on the basis of the contract sum or the cancelled part thereof:
a. in the event of cancellation more than 3 months prior to the time when according to the relevant agreement the first service should be supplied by User, Client shall not be held to pay any compensation to User;
b. in the event of cancellation more than 2 months prior to the time referred to, Client shall be held to pay 15% of the contract sum to User;
c. in the event of cancellation more than 1 month prior to the time referred to, Client shall be held to pay 35% of the contract sum to User;
d. in the event of cancellation more than 14 days prior to the time referred to, Client shall be held to pay 60% of the contract sum to User;
e. in the event of cancellation more than 7 days prior to the time referred to, Client shall be held to pay 85% of the contract sum to User;
f. in the event of cancellation less than 7 days prior to the time referred to, Client shall be held to pay 100% of the contract sum to User.
9.2 The indemnification sum is calculated on the basis of the day when User has received the written cancellation.
9.3 Cancellation of an order issued to User shall take place only in writing.
9.4 The number of persons relevant to the order as stated by Client to User is binding. Client shall not be held to pay compensation in the event of the partial cancellation of an order, provided that it does not exceed a margin of 10% of the stated number of persons, and provided that such cancellation takes place no later than 7 days prior to the established delivery date. If it becomes clear that User must deliver to more persons than stipulated, User shall be entitled to refuse delivery to more persons than agreed, or to accept delivery to those persons against the normal, stipulated conditions. In all cases of cancellation, Client shall owe to User, in addition to what has been stated in this article to that effect, all the latter has to pay with regard to the relevant order, in spite of the cancellation, to third parties from which it has purchased goods or with which it has concluded agreements for the purpose of that order, and which has lead to a payment obligation on the part of User.
ARTICLE 10 SUSPENSION AND DISSOLUTION
10.1. User shall be authorised to suspend its compliance with the obligations or to dissolve the agreement, if:
• Client fails to comply with its obligation from the agreement, or fails to do so in good time or in full;
• after concluding the agreement User has learnt about circumstances which provide good grounds for fearing that Client will not comply with its obligations, or will fail to do so in good time or in full;
• there are good grounds to fear that Client will not comply with its obligations from the agreement in good time, in full or properly.
Suspension shall be permitted only insofar as this is justified by the nonconformity or if Client was asked to provide assurance for compliance with its obligations from the agreement when the agreement was concluded, and that assurance has not been provided or is insufficient. The permission to suspend the agreement shall be annulled as soon as assurance has been provided, unless fulfilment of the agreement has been unreasonably delayed as a result thereof.
10.2. User shall also be authorised to dissolve the agreement if any circumstances occur that are of such a nature that compliance with the agreement becomes impossible or compliance can no longer be required within reason and in fairness, or if any other circumstances occur which are of such a nature that maintaining the agreement without amendment cannot be expected within reason.
In the event that the agreement is dissolved, the receivables due by Client to User shall become payable on first demand. If User suspends its compliance with the obligations, it shall retain its rights under the law and the agreement.
10.3 User shall retain the right to claim compensation under all circumstances.
ARTICLE 11 FORCE MAJEURE
11.1. Parties shall not be held to comply with any obligation if they are hampered in their compliance thereof as a consequence of a circumstance which is not due to a grave error or intent on the part of the party appealing thereto, and for which they are not accountable under the law, a legal act or the prevailing ideas in that respect.
11.2 For the purpose of these General Terms and Conditions, force majeure is understood to refer to those circumstances regarded as such by the law and in jurisprudence, as well as all exterior causes, anticipated or not anticipated, on which User has no influence but which prevent it from fulfilling its obligations.
11.3 User shall also be entitled to appeal to circumstances beyond its control if the circumstance that prevents (further) compliance with the agreement occurs after the time by which User should have complied with its contract.
11.4 Special circumstances which cause stagnation in the preparation or dispatch of the goods to be delivered, whether foreseen or unforeseen, shall suspend the obligation of User to deliver those goods for the duration of that special circumstance.
11.5. Parties may suspend their obligations under the agreement for the period that the force majeure situation continues to exist. If that period exceeds one month, each of the parties shall be entitled to dissolve the agreement, without legal intervention and without being obliged to pay any damages to the other party. Any deposit that has been paid shall be returned.
11.6 Insofar as User at the time of the commencement of the force majeure situation had already complied in part with its obligations under the agreement or it is still able to do so, and the part complied with and/or to be complied with has an independent value, User shall be entitled to invoice the part already complied with and/or the part still to be complied with separately. Client shall be held to pay that invoice as if it were a separate agreement.
ARTICLE 12 OWNERSHIP AND RESERVATION OF TITLE
12.1 All dishware, silverware, tables, chairs, linen and other non-consumptive goods supplied by User shall remain the property of User. If the aforementioned goods remain at the work location, they must be returned carriage free by Client to User.
12.2 Any damage to or loss of those goods caused by Client or its guests or staff must be paid by Client to User against cost price. Any stoneware and glassware has been insured against loss and breakage by User.
12.3. Client is not entitled to sell the items subject to the reservation of title or to encumber them in any other way.
12.4 If third parties confiscate the items delivered under reservation of title, or wish to establish or assert rights as regards those items, Client shall notify User thereof as soon as possible.
12.5 Client gives its unconditional and non-revocable permission in advance to User and any third parties to be engaged to access all those places where User's properties are located and to retrieve them, in the event that User wishes to exercise its ownership rights as referred to in this article.
ARTICLE 13 LIABILITY
13.1 If User is liable for direct damage, that liability shall be limited to a maximum of the invoice amount, or the amount to be paid by the insurer of User if that amount is higher.
13.2 User shall never be liable for any indirect damage, including consequential damage, loss of profit, missed savings and damage as a consequence of the stagnation of the company.
13.3 Client shall be regarded as the owner, lessee or user of the room, even if the room has been rented through the mediation of User. User does not accept any liability and Client indemnifies User against any relevant claims from third parties with regard to any damage caused by User or others to the room and the items therein during the period of use.
13.4 The person managing the building is responsible for the adequate provision of company emergency response. User shall consult with the building's manager to that effect where necessary. If parties are in a private situation, User shall be responsible for company emergency response.
13.5 If the agreement is to be fulfilled in rooms made available by third parties, User shall not be liable in any way in the event that the relevant rooms are not actually made available by the relevant third parties.
13.6 User shall not accept any liability for any occurring damage if flag poles are placed or any rented or sealing materials need to be used on the instruction of and/or with permission from Client.
13.7 Client shall be liable for any damage occurring on the part of User and/or a third party as a direct and/or indirect consequence of a default and/or unlawful act, committed by Client and/or its guest and/or those accompanying him, as well as any damage caused by any animal and/or any substance and/or any item held by and/or under the supervision of Client.
13.8 User shall operate according to its own HACCP and quality standards. These standards shall be derogated from in exceptional cases at the request of and always at the responsibility of Client.
13.9 The Commodities Act imposes strict requirements on User with regard to serving perishable items in a non-refrigerated condition. The relevant items may be offered non-refrigerated once only, for a period of no more than 2 hours. If products are delivered by User without additional services, it shall be liable until the moment of delivery. The food safety of the non-refrigerated products shall be guaranteed by User for a period of 2 hours.
13.10 User can provide non-allergenic food to Client on request. However, due to the complexity of the kitchen it is impossible to prevent cross-contamination with allergens completely, and therefore it is not possible to guarantee that food is 100% allergen free.
13.11 Without prejudice to the liability under the agreement or the law, User shall be liable for any damage to the work during the work, unless that damage is the consequence of exceptional circumstances and with regard to which User did not have to take any suitable measures in connection with the nature of the work and it would be unreasonable to charge the Client for the damage.
13.12 User shall not be liable for any damage, of whatever nature, resulting from the fact that User has applied incorrect and/or incomplete information supplied by Client, unless User should have been aware of such incorrectness or incompleteness.
13.13 Client indemnifies User against any claims from third parties, which suffer damage in connection with the implementation of the agreement, and which damage is attributable to Client.
13.14 If Client wishes to exercise a high-risk sport as part of the event, Client must conclude an agreement to that effect with an events agency. User rejects any liability in that respect.
13.15 Any consequences of compliance with legal provisions or government decisions which are enforced after the date of the quote shall be at the expense of Client, unless it may be assumed in fairness that User was able to anticipate those consequences on the date of the quote.
13.16 Under no circumstances shall User be liable for any damage resulting from any advice it has given. Advice shall always be given on the basis of the facts and circumstances known to User and in mutual consultation, whereby User shall always take the intention of Client as guideline and ruling principle.
13.17 The limitations of liability for direct damage included in these Terms and Conditions shall not apply if the damage is the result of intent or a grave error on the part of User or its subordinates.
ARTICLE 14 TRANSFER OF RISK
14.1 The risk of loss or damage of the supplied goods and materials is transferred to Client the moment when those items are delivered to Client by law and/or de facto and are therefore brought under the power of Client of a third party to be appointed by Client.
ARTICLE 15 TRANSPORT
15.1 If and insofar as User takes responsibility for transport, shipment, dispatch, etc., the method thereof shall be determined by User in the event that no further instruction has been provided by Client to User.
ARTICLE 16 PAYMENT
16.1 Payment must take place on the basis of the net price, in cash and without deduction. Payment in cash is understood to mean: payment for the goods and/or the fulfilment of the transaction within 14 days of the invoice date. If the agreement concerns a transaction whose agreed sum exceeds € 1,250, at least 75% must be paid prior to commencement of the order and the remaining sum within 14 days of the invoice date and/or fulfilment of the transaction, unless otherwise has been agreed in writing. If the aforementioned part of 75% has not been paid on commencement of the order, User shall be entitled to dissolve the agreement without legal intervention and proof of default, and without Client being entitled to any compensation by virtue of such dissolution, such with reservation of all rights.
16.2 Any objections against the invoiced amounts shall not suspend the payment obligation.
16.3 If Client fails to pay the invoice within the term of 14 days, Client shall be legally in default. In that case, Client shall owe interest of 1.5% per month or part thereof, unless the legal interest or legal commercial interest is higher, in which case the highest interest shall apply. Interest on the amount due shall be calculated from the moment when Client is in default until the moment when the full amount has been paid.
16.4 In the event of liquidation, (application for) bankruptcy, admission to debt adjustment by virtue of the Wet Schuldsanering Natuurlijke Personen [Debt Repayment (Natural Persons) Act], seizure or the (provisional) suspension of payments of Client, the receivables due by Client to User shall be payable on first demand.
16.5 Payments shall serve in the first instance as settlement of the costs, then as settlement of the interest due and finally as settlement of the principal sum and current interest.
ARTICLE 17 COLLECTION CHARGES
17.1 Any prosecution costs due to non-payment and collection charges, both legal and non-legal, including those for legal assistance and those that are not liquidated under a court decision, shall be payable by Client, whereby non-legal costs are 15% of the contract sum, with a minimum of € 350 and without deduction of VAT.
17.2 If User has incurred higher costs which were necessary in fairness, they shall also qualify for payment. Any reasonable legal and execution costs shall also be payable by Client.
ARTICLE 18 TRANSLATIONS OF THESE TERMS AND CONDITIONS
The Dutch version of these Terms and Conditions is the only authentic version. If a translation derogates from the Dutch text in any manner, the Dutch text shall prevail.
ARTICLE 19 DISPUTES
Any disputes arising from or relating to an agreement subject to these Terms and Conditions shall be settled only by the competent judge in the town where User has its registered seat. User shall nevertheless be entitled to put the dispute to the Court or Arbitration Council which is competent according to the law.
ARTICLE 20 GOVERNING LAW
All our offers, agreements and their fulfilment shall be subject only to Dutch law. The UN Convention on Contracts for the International Sale of Goods (the Vienna Convention) is expressly precluded.
ARTICLE 21 REGISTRATION OF THESE GENERAL TERMS AND CONDITIONS
These Terms and Conditions have been deposited with the Chamber of Commerce and Industry under Number 16033506 and are available for consultation at our website at all times.