1. Applicability of the General Terms and Conditions
- These General Terms and Conditions (hereafter: ‘GTC’) are applicable to all proposals, offers, agreements and order confirmations where Accede B.V. (hereafter ‘Accede’) and client, also collectively referred to as “parties”, are a party, including giving advice and hiring third parties.
- In case of contradiction of a condition in these GTC and a condition in an agreement closed with Accede, the content of the agreement closed with Accede prevails.
- In case one or more conditions in these GTC appear to be void, are destroyed or lose their legality in another way, the remaining conditions rest applicable.
- A client who has purchased under the present conditions, is considered to have accepted our terms and conditions as being applicable for any orders placed thereafter, regardless of whether such order is confirmed in writing.
- Accede reserves the right to modify these GTC with immediate effect. These modifications are only applicable to future offers, agreements and order confirmations and the client will be notified thereof in writing.
- Offers, regardless of the form, are completely non-commital and not binding, unless the contrary appears expressly, unambiguously and in writing.
- For Accede, an agreement with a client is only closed when an order given to Accede is accepted respectively confirmed by Accede in writing, without restriction. Accede’s order confirmation is considered to reflect the agreement in a just and complete manner, unless the other party is notified explicitly in writing within 5 working days upon receipt of the order confirmation. The aforementioned is also applicable for the realisation of further agreements and for modifications to existing agreement.
- The closing of an agreement is subject to timely and correct delivery by the supplier of Accede. The client is informed immediately in case Accede cannot perform as a result of a late or incorrect delivery of her suppliers.
- Work carried-out beforehand (including cost estimation) by Accede in order to prepare a proposal at the request of the client, can be invoiced to the client, also in the event that no agreement is closed.
- All drawings, sketches, diagrams, samples, models etc. made by Accede for the purpose of orders, belong to Accede and remain Accede’s property after completion of the agreement. It is prohibited to multiply entire drawings etc., or part thereof, without Accede’s written approval, or to give or show to third parties, regardless of the objective. The Client is responsible towards Accede for any damages caused by drawings etc. Being given or shown to third parties. Drawings etc. are to be returned to Accede immediately upon first request.
- Accede is not responsible for any errors in data, drawings etc. or advice to Accede given by or on behalf of the client and being used for the execution of the agreement. Accede is not obliged to check the information given by the client or information received through the client from third parties and relies on the correctness thereof. Client exempts Accede from any claims of third parties, with regard to the above, resulting from incorrect information.
- After acceptance of the order, modifications given by Accede’s client are only executed by Accede when they have been confirmed in writing by Accede. In case Accede decides, with good reasons on Accede’s part, not to execute the modifications given, the client shall under no circumstances be entitled to cancel the entire agreement or part thereof, and the client remains responsible for the payment of the costs already incurred by Accede, as well as any loss of earnings or other idle losses. Cancellation and/or termination is only possible after written permission by Accede. In case of cancellation and/or termination by the client, the client remains responsible for the payment of the costs already incurred by Accede, as well as any loss of earnings or other idle losses. If there is a reasonable presumption that the financial position of the client justifies this, Accede is entitled to request security for the payments made/to be made by Accede on behalf of the client, by means of a bank guarantee in favour of Accede or through direct payment of the agreed upon and due amount. Accede is entitled to postpone the execution of the work until the security requirements have been met. If the security requirements have not been met within 10 days upon request thereof, the client is in breach of the contract, without requiring a letter of formal notice, and Accede is entitled to terminate the agreement without judicial intervention. The client is responsible for all costs, damages and loss of earnings resulting from the order and intermediate termination.
- Accede is entitled to appoint third parties for the execution of this order.
Deliveries are estimated delivery times and not a deadline. Accede is not responsible for the consequences as a result of postponement of the given delivery time. Postponement of the delivery time, regardless of the cause, will not entitle the client to damages, nor will it free the client of any of its obligations. Termination by the client is only possible within the cancellation conditions, as per article 2.7. Accede is entitled to invoice every partial delivery and to request payment thereof. If and as long as a partial delivery has not been paid by the client, or the client does not fulfil other obligations resulting from this agreement or (a) earlier agreement(s), Accede is entitled to stop a following partial delivery and to terminate the agreement, for deliveries not yet executed, without judicial intervention and without the necessity of a letter of formal notice of the client, whereby Accede maintains its right to damages and the client has no right whatsoever to claim damages.
- All prices are in Euros, unless stated otherwise and are based on delivery ex works or factory, including packaging and excluding VAT, unless otherwise agreed upon. Upon departure of works or factory, the goods are the responsibility of the client and the client is obliged to cover this risk with sufficient insurance. Accede is free in its choice of appropriate packaging and shipping. In the event that costs such as freight costs, import and export duties, station-, storage-, security-, import- and export costs, taxes or any other duties, pertaining to this agreement are introduced or increased after entering into this agreement, as well as exchange-rate changes, these costs are borne by the client, unless specifically agreed upon otherwise. For goods that Accede is obliged to deliver in term or on demand and for goods that Accede does not have or only partially has in stock upon receipt of the order and is noted by Accede for delivery as soon as possible, Accede remains the right, without further notice, to charge the prices and costs applicable upon delivery, regardless of previous confirmation.
- If, after having accepted an order, Accede is confronted with circumstances that may influence the cost price, such as changes to raw material prices, to the items to be delivered, wages, exchange rates or import duties etc., Accede remains the right to charge these additional costs to the client. The client is informed accordingly.
5. Payment and omissions
Payment is to be made within 30 days of the invoice date. If payment is overdue, the client is in breach of the law, without requiring a letter of formal notice or any other notice. In which case the execution of all orders accepted for the client will be postponed until complete payment has taken place, or within a timeframe set out by Accede. If this term is overdue, then Accede is entitled not to execute the orders in question and to claim damages. From the moment that payment should have been effected, the client is obliged to pay 1.5% interest of the invoice amount for every month or part of a month that the due date has expired. Payments are to be effected by bank transfer or in cash at the Accede offices. If payment is overdue, or in case of (request for) bankruptcy, judicial administration or any form of legal constraint and liquidation, the client is in breach of law, without requiring a letter of formal notice. All costs, especially extrajudicial, and legal costs for the collection of Accede’s claim, pertaining to the late payments, are at the expense of the client who is in default. The extrajudicial costs are 15% of the total claim. Accede has the right to decide to which invoice the payments will be attributed, however, in any case payments shall firstly be deducted from interest due and the extra costs incurred by Accede. Accede reserves the right at all times to request additional payment security from the client. In case the client has not supplied payment security within 10 days of demand thereof, the client is considered to be in default and the order is cancelled, i.e. the agreement is considered to be terminated. The client will bear all costs incurred by Accede and damages resulting from this order and its premature termination. Accede is entitled to demand the client to sign a transfer of debt agreement of his claim(s) on his client, to which the client commits, if requested by Accede, serving as a security for payment of debt of the client to Accede.
6. Reservation clause and risk
Ownership of the goods delivered by Accede is transferred to the client after the client has met all the obligations towards Accede, pertaining to the payment of the agreed consideration as well as the payment of claims pertaining to non-compliance of the agreement. As long as the client is in possession of goods for which Accede is entitled to claim ownership, the client is obliged, upon first request of Accede, without requiring judicial intervention, to return the goods to Accede. The client is obliged to keep the goods in question separately and to label the goods as Accede goods. It is prohibited to pawn or to offer to third parties for security, to lease or to sell, no matter in which form, to alienate or to relocate the goods referred to in Accede’s reservation clause to a location other than the location agreed upon. The costs of exercising this reservation clause are at the expense and risk of the client. It is the responsibility of the client to insure the goods referred to in this clause against risks that are normally insured (fire, theft, water and storm damage included) or considered as necessary by Accede. The client is obliged to inform Accede immediately in case third parties claim the right of goods which, under this reservation clause, are due to Accede. In case of late acquisition and/or non-compliance of the client’s obligations or if the client declares moratorium on its own request or on request of a third party, is in bankruptcy or in case of sequestration of any goods or property of the client, or if he shuts down or threatens to shut down his business or approaches his creditors with the intention of debt restructuring/debt repayment, or if Accede could presume that one of the above mentioned events is likely to occur in due course, the client is obliged to inform Accede in writing in order to put off any further delivery of goods or services and to wind-up any agreement in whole or part thereof by mere written confirmation to the client without prejudice to Accede’s right to redress for damages and/or revoking the goods. The client already gives permission in advance and already grants Accede access to his properties enabling Accede to revoke any goods already delivered but not yet paid for by the client. Accede’s claim on the client will be entirely collectable immediately in any of the above mentioned events.
7. Force majeure
If a force majeure situation arises for Accede, including interruption of business or the delivery of products, materials, raw materials or other resources, as well as circumstances resulting in a situation where delivery for Accede becomes aggravating or disproportionally difficult, Accede is entitled to suspend the delivery for a period reasonable to Accede, or to dissolve the agreement after the suspension by means of a written motivation, without the client being entitled to damages incurred or to be incurred. In case of a partial delivery, the client will pay the relevant costs and/or a proportional part, of course against delivery by Accede of the goods ordered. Accede is not responsible for direct or indirect damages, no matter in what form, for the client or for third parties as a result of postponement or cancellation due to the aforementioned force majeure situations.
- Accede guarantees, for a period of 12 months after delivery of the products at the address specified by the client, the durability and functioning of the goods delivered by Accede, unless otherwise agreed upon.
- If the products are destined for one-time or short use, no guarantee is granted.
- In case products or parts thereof are obtained by Accede through third parties, or if certain activities – also including installation activities – are being performed by third parties, the guarantee period as per art. 8.1 is not applicable. The guarantee period of the respective third party is applicable. If possible, Accede will give insight into the type and duration of the third party guarantee as referred to in this article.
- During the validity of the guarantee period, Accede and/or one of its third parties will initially repair all damages free of charge, that are proven by the client to be the result of the use of faulty material, defective finishing or faulty construction by Accede and/or a third party designated by Accede. Accede reserves the right to recover any possible initial repair expenses incurred, should the client be unable to sufficiently prove that the origin of the defect lies with Accede and/or a designated third party.
- Condition for the validity of the guarantee given by Accede is that the client supplies Accede will all the relevant details in writing by registered mail within 14 days after having identified the event. The guarantee is only valid if the client has fulfilled all its obligations towards Accede (financial and other), or has given sufficient security therefore. Alleged non-compliance by Accede of the guarantee obligations does not release the client of its obligations under this agreement.
- Accede is not obliged to pay any further damages, direct or indirect, incurred by the client or any third party. Complaints with regard to invoices sent will only be treated if and when the complaint has been submitted in writing within 14 working days after receipt of the invoice by the receiving party.
- The client has no right to claim under guarantee if the defects and/or faults are entirely or partially due to incorrect, inaccurate or inexpert use. This includes:
- Unprofessional use or incorrect use of materials.
- Defects due to normal wear and tear, incorrect use, exceptional strain/demand or the use of inappropriate equipment and corrosive chemicals.
- If the assembly differs from the assembly instructions, or external factors such as lightning stroke or fire, or if the client makes (lets others make) modifications to the delivered goods without prior written approval from Accede or in case of use for another purpose or application.
9. Liability Accede
- Accede is only liable for damages suffered by the client, directly and entirely resulting from a shortcoming or proven negligence or intent of Accede. The liability of Accede as a result of indirect damages, consequential damages, exploitation losses, missed savings, reduced goodwill, damages due to business stagnation or damages due to expired deadlines is exempted.
- Accede’s liability for damages is restricted to the amount actually paid to Accede by its insurer. The following restrictions are applicable:
- - damages caused intentionally or due to gross negligence of auxiliaries are not compensated;
- - damages caused by third parties appointed by client are not compensated;
- - damages payable by Accede are never superior to the amount of the actual amount invoiced and paid excluding VAT for the respective delivery.
- Payment of damages are subject to the client informing Accede in writing of the shortcoming resulting in the damages as soon as reasonably possible, however, within 14 days of the client noticing the shortcoming or reasonably should have noticed the shortcoming and that the client has done all that could reasonably be expected to limit the damages.
- The client assures the accuracy and completeness of the information given to Accede and is responsible for such information. Accede cannot be held accountable for damages incurred by the client as a result of incorrect or incomplete information given by the client.
- All intellectual property rights, including but not restricted to patent rights, trademark rights, model rights and copyrights on the delivered goods and/or services, designs, knowhow and information, rest with Accede. The client is only entitled to user charge of the delivered goods or services and powers given in the agreement or within these General Terms and Conditions. If the client instructs Accede to duplicate or reproduce an object protected by intellectual property rights, the client hereby certifies that there is no infringement on the rights in question of others than the parties. The client safeguards Accede, in and out of court, for all consequences, including claims from others than parties, financial and other, resulting from the duplication or reproduction.
- The client is informed that the knowhow given by Accede includes confidential information and business secrets of Accede. In addition to article 11 of these General Terms and Conditions, the client commits to treating this knowhow confidentially and not revealing or giving it to others than parties and to use this knowhow solely for the purpose for which it was given. Others than parties also include all persons working within the organisation of the client, who may not necessarily require to use this knowhow. The client is prohibited to delete or amend any form of IP indication on the delivered products and/or services, including indications pertaining to the confidential nature and secrecy of the knowhow.
- Non-compliance on the part of the client of the provisions of paragraphs 1 and 2 of this article will result in an immediate penalty for the client, in favour of Accede, of a maximum of ten thousand Euros (€ 10.000,--) per infringement and five thousand Euros (€ 5.000,--) per day that the infringement persists, in addition to other rights that Accede may be entitled to, including the right to entire damages and/or compliance. If the client is confronted with notifications or legal claims based on the implication that the knowhow developed by Accede infringes on a valid right to intellectual property of a third party, the client is obliged to inform Accede immediately in writing regarding the existence and the details of the notification or legal claim. Failure to do so will result in Accede nog being held accountable to the client. It is at the sole discretion of Accede whether Accede wishes to handle the case, accept a settlement, or if Accede wishes to leave the handling to the client. In case of the latter Accede shall render support to client where possible in order to defend itself against the notification and legal claim. All costs that reasonably have to be made in order to ensure a good settlement of the arisen problem are to be borne by Accede, in case Accede decides to handle the case. If the case is handled by the client, the relevant costs are borne by the client. If Accede decides to handle the case, the client will supply all the necessary information and power of attorney and will render all support necessary to enable Accede to defend itself against the notification and legal claims, if necessary on behalf of the client.
- If it has legally been proven, without a doubt that the knowhow developed by Accede infringes on any intellectual property rights of a third party or if, in Accede’s opinion, there is a reasonable chance of infringement, Accede will take back the delivered products from the client and will refund the purchase cost with reduction of a reasonable compensation for use; or Accede will ensure that client can continue to use the goods supplied or an equivalent, this at the discretion of Accede. As a result, the client is obliged to return the delivered goods without Accede being obliged to pay any damages to the client as a result.
- Paragraphs 3 and 4 are not applicable in the event that the infringement in question pertains to amendments to the knowhow made by the client or another party (other than parties) upon request of the client.
- Any liability of infringement of intellectual property for Accede, of others than parties, deviating from the preceding paragraphs is excluded, this includes Accede’s liability for infringement caused by:
- use of goods not delivered by Accede;
- use in another manner than goods were developed for.
- Parties are answerable to one another that all confidential information exchanged as of commencement of the agreement will be kept confidential, especially with regard to design, knowhow, documentation, photo's, drawings, picture and sound recordings etc. Information as described in the previous sentence is regarded as confidential, if one of the parties has indicated this.
- The client is prohibited to give text and/or pictures, including but not restricted to design, knowhow, documentation, photo’s, drawings, sound and picture recordings as stated in paragraph 1 of this article to anyone other than parties, no matter via which medium, or to copy, reproduce, distribute or contribute to any publications or use in any other way.
- Non-compliance on the part of the client of the provisions of paragraphs 1 and 2 of this article will result in an immediate penalty for the client, in favour of Accede, of a maximum of ten thousand Euros (€ 10.000,--) per infringement and five thousand Euros (€ 5.000,--) per day that the infringement persists, in addition to other rights that Accede may be entitled to, including the right to entire damages and/or compliance.
- The client is legally in default if:
- the client violates any obligations deriving from this agreement/these terms and conditions; or
- the client is declared bankrupt, moratorium is granted, the statutory debt arrangement (WSNP) is applicable, is put under legal restraint or his entire or part of his capital is put under judicial supervision or if a request to any of the above is made; or
- the client transfers the management of or the control of her entire organisation or part thereof, loses her Legal personality, is dissolved respectively liquidated or any other form of abandonment of the management of client; or
- if attachment is levied or goods of the client are seized by permission of a court of law.
- In the situation as described in subsection 1, Accede has the right to dissolve the entire agreement, or part thereof, one-sidedly, without formal notice or judicial intervention, with immediate effect, without Accede being held to any form of damages towards the client and without prejudice to other rights that Accede may be entitled to, including for example but not limited to the right to full compensation. The dissolution must be done in writing.
- Amounts invoiced by Accede before the dissolution, pertaining to work carried out or goods delivered as a result of the agreement, remain due and are immediately claimable upon dissolution.
13. Applicable Law and Jurisdiction
- Only Dutch law pertaining to the European Nation applies to all agreements where Accede’s terms and conditions are applicable and agreements resulting from this. This also applies to negotiations, offers, quotations, accepted orders, assignments and the like.
- The applicability of provisions of any international treaty, including the CISG, is excluded, in so far as parties are authorised to exclude the applicability.
- All litigations between parties pertaining to the execution of agreements, offers, quotations, accepted orders, assignments and the like, including negotiations, governed by these terms and conditions, will be settled by the court in Almelo, unless the deployment of the litigation belongs to the absolute authority of the court, sector or canton, in which case the litigation will be submitted to the authorised sector. Regardless of the provisions in this article, Accede is at liberty to take up the matter before a legally competent court.
14. Filing and Validity
These terms and conditions have been filed at the Chamber of Commerce in Enschede and registered under number 06090933 and are valid as of 1st November 2010.