General Terms of Sale and Delivery of Retail Trading Business B.V.
Article 1 General
- The general terms and conditions which follow apply to all offers and contracts whereby RTB B.V., hereafter to be called RTB BV, supplies goods and/or services of any kind whatsoever to the client, even if such goods or services are not defined (further) in these terms and conditions, to the express exclusion of any differing general terms and conditions of the client.
- In these general terms and conditions, the client shall mean: any person (or legal entity) who wishes to enter into a contact with RTB BV or has entered into a contract for the supply of products or services or the carrying-out of work of any kind whatsoever, including the supply of computer hardware, the provision of computer software, the provision of support, the development of software, advice, the provision of training programmes and courses, and all related activities and other services.
- In these general terms and conditions, the contract and the order shall mean: the individual contract entered into between RTB BV and the client, of which these general terms and conditions form an integral part.
- In these general terms and conditions, the provision of computer software (and the related documentation) shall mean: the provision by RTB BV or the licenser to the client of a non-exclusive and non-transferable right of use.
- In these general terms and conditions, installation shall mean: the setting-up of the computer hardware so that it is ready to use and the implementation of computer software on the hardware.
- In the event that any provision of these general terms and conditions is declared void or otherwise non-binding by a competent court, the remaining provisions of these terms and conditions shall remain in force in their entirety.
- Any general terms and conditions of the client and clauses differing from these terms and conditions shall only apply if and insofar as they are approved by RTB BV expressly in writing.
Article 2 Offers
- All offers by RTB BV, in whatever form they are made, are without obligation, unless expressly stipulated otherwise.
- Orders, contracts and amendments thereto shall only be binding on RTB BV if and insofar as they are confirmed by the latter in writing; any arrangements made or undertakings given previously which are not confirmed in writing by RTB shall therefore cease to be valid. The client is bound by its order, which constitutes an irrevocable offer, to RTB BV.
Article 3 Prices
- Unless stipulated otherwise in offers, contracts or order confirmations, the prices quoted by RTB BV exclude turnover tax and any other taxes and apply for delivery from RTB BV’s premises.
- RTB BV reserves the right to increase the prices and rates agreed with the client proportionally in view of price changes, changes in exchange rates, raising of tax rates, surcharges for raw materials or transport or any other change to an element of the cost price relevant to RTB BV, where such changes occur or become manifest after the acceptance of an order. RTB BV also reserves this right in the case of particularly time-consuming orders and/or interim changes, even if these are expressly approved, which turn out to increase costs to such an extent that it is reasonable for RTB BV to require the client to pay a higher price than that agreed.
Article 4 Payment
- All invoices must be settled by the client in accordance with the terms of payment indicated on the invoice. In the absence of any specific terms of payment, the client must pay within 14 days of the date of the invoice, with no deductions, setting-off or reduction on any basis whatsoever. No payment may be deferred, even if the client believes that it has some right of recovery or guarantee. For deliveries below the sum of € 1,000 per order, apart from shipping costs, any other costs, including processing costs, shall be charged extra.
- If the client does not pay the amounts due within the agreed period, it is in default without the need for notice of default and it shall owe interest on this, with effect from the date on which it is in default, to RTB BV at a rate of 1.5% per month or part of a month for which it remains in default as to the fulfilment of his obligations, notwithstanding any other rights held by RTB BV. If the client still fails to settle the debt following notice of default, the debt may be referred for collection, in which case, besides the amount due, the client shall also be obliged to reimburse the full amount of the extrajudicial collection costs, including lawyers’ fees, the amount of which shall be determined in accordance with the collection rates recommended by the Netherlands Bar Association.
- Notwithstanding the agreed terms of payment, RTB BV is entitled to demand further security from the client for the total or partial performance of the contract for the fulfilment of the client’s payment obligations. If and so long as the aforementioned security is not provided by the client, RTB BV reserves the right to suspend the performance of the contract.
- RTB BV is entitled to set off its claim against the client against the amount it owes the client at any time.
Article 5 Reservation of title and retention
- RTB BV reserves the title to the computer hardware and software and shall not transfer the rights of use of the computer software until the client has settled in full whatever is owing to RTB BV on any basis whatsoever. In the event of the termination of the contract, RTB BV shall be entitled, without prior notice of default or judicial intervention, to seize the computer hardware, the computer software and all other property of RTB BV, wherever they may be located.
- RTB BV is entitled, if it has any property of the client in its possession, to retain possession of such property until all amounts owed by the client on any basis whatsoever have been paid to RTB BV in full. RTB BV has the same right of retention in respect of the client's debtors or third parties who have or acquire a right to the property and in the event that the client has applied for a moratorium or goes into liquidation.
Article 6 Installation and acceptance
- If this is agreed in writing, RTB BV shall install the computer hardware or have it installed, and implement the computer software or have it implemented in the manner described in the order.
- The computer hardware and software shall be deemed to have been accepted on the date of installation by RTB BV. If it is agreed in writing that the client shall take care of the installation itself, the computer hardware and software shall be deemed to have been accepted on the first day following the delivery date.
- If it is agreed in writing that the computer hardware and/or software shall be subjected to an acceptance test to be arranged by RTB BV, notwithstanding the previous paragraph, this computer hardware and/or software shall be deemed to have been accepted following the success of the acceptance test.
- In any case, the client shall provide all necessary assistance, including the prompt provision of staff to assist, equipment, materials and other resources of sufficient quality. Prior to delivery, the client shall also make available a place of installation which RTB BV considers suitable with all the necessary facilities in RTB BV's view.
- If the installation or the acceptance test cannot take place within the agreed time due to acts or omissions, culpable or otherwise, on the part of the client or a third party, the computer hardware and software shall be deemed to have been approved and accepted by the client and the installation shall be deemed to have been completed at the time when the installation or the acceptance test would have taken place.
- If the client uses the computer hardware and software commercially or professionally before the indicated delivery date or acceptance date, the computer hardware and software shall be deemed to have been accepted at the time at which it is first used by the client.
Article 7 Delivery and delivery times
- Unless expressly agreed in writing, delivery shall take place to the house/business of the client or to another address indicated by the client.
- The client is obliged to check the delivered item(s) and/or the packaging for any missing items or damage immediately, or at the latest within 24 hours after delivery.
- The client shall inform RTB BV directly in writing of any missing items and/or damage existing on delivery at the latest 3 days after delivery, failing which RTB BV is entitled to refuse to process any complaints in this respect.
- The indication of a delivery date, including the time indicated by RTB BV within which the installation work will be carried out, is always an estimate and shall never be considered by the client as a deadline.
- RTB BV is obliged to respect the delivery time as far as possible, but shall never be liable for its being exceeded. If this time is exceeded, RTB BV is not liable for any compensation or damages of any nature whatsoever. The exceeding of the delivery time shall not entitle the client to cancel a contract or to refuse to purchase goods or services. If a delivery time is likely to be exceeded, RTB BV and the client shall consult with each other as soon as possible in order to prevent the exceeding of this time and/or to adjust the dates.
Article 8 Transport and risk
- Unless otherwise indicated by the client to RTB BV, the mode of transport, shipment, packaging, etc. shall be determined by RTB BV to the best of its ability.
- Any specific requirements of the client concerning packaging and/or transport, including (re)location within the business, shall be for account of the client.
- Unless expressly agreed otherwise in writing, transport of goods shall take place for account and at the risk of the client. Any liability of RTB BV shall be limited at all times to the cover/indemnity provided by the transport insurers in question. RTB BV is entitled to claim a surcharge for insurance.
Article 9 Force majeure, suspension and termination
- RTB BV is not obliged to fulfil any obligation if it is prevented from doing so by circumstances beyond its control, or for which it is not responsible by law, according to legal custom or generally accepted practice.
- In the case of force majeure or other circumstances such that RTB BV cannot reasonably be expected to perform the contract, the performance of the contract shall be suspended or, if such suspension has lasted for 6 months, the contract may be terminated by either party by registered letter without RTB BV being obliged to pay any compensation on any basis whatsoever.
- If at the time of termination, the client had already received goods or services in performance of the contract, in the case mentioned in Article 9.2, the client may only terminate the contract in part and only for that part which has not yet been performed by RTB BV. Amounts invoiced before or after termination for goods or services received shall remain payable in any case.
- Should the client fail to fulfil any of its obligations to RTB BV, or go into liquidation, or be granted a (temporary) moratorium, RTB BV reserves the right without the need for notice of default or judicial intervention to terminate all contracts concluded with the client, in full or in part, by written notice to the client with immediate effect, notwithstanding any other legal rights it may have. RTB BV shall never be liable for any compensation due to such termination.
Article 10 Right of use and indemnity
- Copyright and all other intellectual or industrial property rights to all computer hardware and software and related documentation supplied to the client by RTB BV are held exclusively by RTB BV or the licenser.
- All computer software including updates and new versions shall be supplied to the client based on a non-exclusive and non-transferable right of use, provided that the software is only used in accordance with the conditions laid down in this respect by RTB BV or the licenser. The client shall only receive the rights of use expressly granted under these terms and conditions or in the licence agreement.
- The client is prohibited without the express written permission of RTB BV or the licenser from copying or publishing the software or the associated know-how and documentation, in any form whatsoever, or permitting third parties to copy or publish the software, or transferring it or making it available in any form, directly or indirectly.
- RTB BV guarantees that the computer software developed by it does not infringe any third party copyright under Dutch law. RTB BV shall indemnify the client for any action by third parties, provided that the client affords RTB BV every assistance in this respect. If in the case of a final court judgment where RTB BV was a party to the proceedings, it is established by the Dutch court or otherwise acknowledged by RTB BV that the software developed does infringe a third party copyright, after consulting the client, RTB BV shall acquire for the client at the latter's expense and option the right to continue to use the software, or to replace the software or the part which infringes the copyright or to modify it so that the infringement no longer applies. If none of these possibilities is reasonably available to RTB BV, RTB BV shall take back the software or the part of this which infringes the copyright in return for fair compensation based on the current market value of what has been taken back.
- If the computer software of a supplier is involved, only the licence and warranty conditions of the supplier/original manufacturer shall apply and RTB BV's obligation to indemnify shall never exceed the indemnity provided to RTB BV by its supplier. RTB BV shall inform the client at its request of the contents of the provisions, or supply the applicable provisions with the computer software.
Article 11 Complaints and guarantee
- Notwithstanding the provisions of Article 7.3, complaints must be made in writing within 8 days after discovery of the defects, failing which any claim against RTB BV under the guarantee in respect of such defects shall be invalid.
- Unless a different guarantee is expressly agreed in writing, or the guarantee conditions and conditions for complaints of the supplier/original manufacture apply, RTB BV guarantees the goods supplied by it, including the computer software provided, against material and manufacturing defects for a period of six months after the delivery date. In accordance with Articles 11.1 and 11.3, RTB BV guarantees the proper functioning of the computer hardware and software. RTB BV shall rectify any faults discovered for its own account to the best of its ability or arrange a replacement at its discretion. Its responsibility shall never exceed this.
- Special guarantee conditions:
- As a condition for the fulfilment of the guarantee obligations, RTB BV may demand that the item to which the guarantee applies be sent carriage paid to RTB BV or to an address to be indicated by it.
- If repair in situ is required, the guarantee does not cover travel and accommodation costs.
- The guarantee does not apply:
- To minor variations in quantity, quality or reliability which are considered to be acceptable in the industry or are technically unavoidable.
- If installation is carried out by parties other than RTB BV;
- If the client has arranged for the goods to be repaired or has arranged for modifications to be made to the goods itself or the delivered items are used improperly or for a different purpose than that for which they were originally intended or other work is carried out in this respect by the client or third parties.
- If the maintenance instructions and the guidelines for positioning, storage, etc. are not complied with;
- If the client fails to fulfil any obligation under a contract concluded with RTB BV at all or on time;
- If it emerges that the client has tried to copy or reproduce the computer software supplied or has permitted third parties to copy or reproduce the software.
If it emerges that the cause of the defect lies in computer hardware and/or software not supplied by RTB BV.
- If goods of a supplier are involved, the guarantee conditions and conditions for complaints of the supplier alone apply. RTB BV shall inform the client of their contents at the latter’s request, or supply the applicable provisions with the goods.
Article 12 Liability and indemnity
- RTB BV’s liability for the delivery of the goods, including the provision of computer software, is limited to the fulfilment of the guarantee obligation described in Article 11. More generally, any liability for loss suffered by the client is excluded, unless the loss is the result of intent or gross negligence on the part of RTB BV or its employees or the employees used by it to perform the contract.
- Under no circumstances is RTB BV liable for indirect loss or consequential loss, loss of profits, loss due to loss of information, files and data or loss due to information or advice supplied by RTB BV unless such loss is the result of intent on the part of RTB BV or the employees of RTB BV or the employees used by it to perform the contract.
- Possible liability shall be determined partly on the basis of the business interruption insurance taken out by RTB BV. If cover applies, RTB BV’s liability to the client shall never exceed € 450,000 per loss or per series of related losses. If cover does not apply, RTB BV’s liability to the client shall be limited to 50% of the net invoice amount of the goods or services supplied due to which the loss occurred.
- The client shall indemnify RTB BV, its staff and persons employed by or through RTB BV for all claims by third parties for indemnity for compensation for any loss suffered by such third parties, caused by or otherwise related to goods and services supplied by RTB BV.
- Conditions limiting, excluding or determining liability which may be invoked against RTB BV by third parties, including suppliers, may also be invoked by RTB BV against the client.
Article 13 Assignment of rights and obligations
- The client is not permitted to assign its rights and obligations under the contract to a third party without the prior written permission of RTB BV, which permission shall not be withheld on unreasonable grounds.
- RTB BV is entitled to assign its rights under a contract to third parties or to have another party enter into contract on its behalf or to involve a third party in the performance of a contract.
Article 14 Obligations of the client
If information required for the performance of the contract is not supplied by RTB BV at all, on time or as agreed, or if the client fails to fulfil its obligation in some other manner, RTB BV reserves the right to suspend the performance of the contract and to charge an additional fee at its standard rate.
Article 15 Maintenance
RTB BV is prepared to enter into a maintenance contract with the client in accordance with RTB BV’s General Terms and Conditions for Maintenance Contracts.
Article 16 Support and services
If RTB BV agrees with the client that it shall provide support staff or make certain facilities available for a certain period, this shall be based on hours worked at the applicable standard rates for support and services of RTB BV. These rates are exclusive of the cost of materials and call-out charges and apply unless other rates are expressly agreed in writing in advance based on specifications or otherwise.
Article 17 Provisions concerning cancellation and payment for training programmes and courses.
- The fees for courses/training programmes stipulated in the contract are payable in advance.
- Courses and training programmes may be cancelled by the client in writing one month before the start date.
- In the event of cancellation 2 weeks before the start date, the client must pay 20% of the total fees for the course/training programme and in the event of cancellation 1 week before the start date it must pay 50%.
- In the event of cancellation less than one week before the start date, the client must pay the entire fee for the course/training programme. In this case, RTB BV shall allow the client to nominate a replacement to attend the course/training programme in question.
Article 18 Rates
The standard charges and rates applied by RTB BV for maintenance and services, including advice and installation/implementation, are based on the level of wages and prices in the December before the date on which they are notified to the client. They shall be adjusted annually on 1 January in line with any changes in the aforementioned level of wages and prices. If final data required for this is not available in time, invoicing may be based on an estimate and subsequently corrected if necessary. Interim adjustments are possible if justified by excessive changes in wages or prices.
Article 19 Changes and contract extras/reductions
- RTB BV reserves the right to carry out additional work and to charge for this without prior permission from the client if the additional work does not exceed 10% of the amount originally agreed.
- Changes to the order originating from the client or caused by a change in the circumstances which result in contract extras/reductions shall be performed and charged to the client reasonably and fairly.
- If contract extras or reductions deviate by more than 10% from the amount originally agreed, the parties shall consult each other about the measures to be adopted.
Article 20: Cancellation of support, services and items ordered
The client is not entitled to cancel orders issued to RTB BV or sales/delivery contracts concluded with RTB.
Article 21 Applicable law and disputes
All offers, contracts and the performance thereof are governed by Dutch law. Any disputes arising therefrom shall be settled exclusively by the District Court of Assen
Emmen, 19 December 2008