Of the private company DITT BV design+build B.V., established in ALMELO, KvK 08146211 (2014). Article 1 Definitions
1. DITT BV design+build shall mean: DITT BV design+build B.V., or affiliated companies/companies, being Kunde, which has issued an Order to the Contractor for (a combination of) the supply of goods, the provision of advice, the performance of services and/or the execution of work, or has invited the Contractor to make an offer in this respect.
2. The term Contractor shall mean: the party to whom DITT BV design+build has awarded an Order for (a combination of) the delivery of goods, the provision of advice, the rendering of services and/or the performance of work, or the party that has been invited by DITT BV design+build to make an offer in that respect.
3. An Order shall mean: the agreement whereby the Contractor has undertaken towards DITT BV design+build to deliver (a combination of) goods, perform services or carry out work.
Article 2 Applicability
1. These General Conditions of Purchase apply to all requests made and Orders issued by DITT BV design+build, both for (a combination of) the delivery of goods, the provision of services as well as the performance of work. They also apply to all obligations arising from agreements subsequently concluded between the parties.
2. If there is the contracting of work, the Uniform Administrative Terms and Conditions for the Execution of Works (UAV) and the Uniform Administrative Terms and Conditions for the Execution of Technical Installation Works (UAVTI) shall also apply, always the most recent version thereof.
3. If provisions as included in these General Purchase Conditions deviate from the UAV and the UAVTI, the provisions as included in these General Purchase Conditions shall prevail.
4. Deviations from articles in these General Purchase Conditions may only be made in writing. The other articles in these General Conditions of Purchase, from which there is no express deviation, remain in full force and effect.
5. The Contractor cannot derive any future rights from any agreed written deviations from these General Purchase Conditions.
6. Application of General Conditions of Purchase invoked by the Contractor is expressly rejected.
7. If one of the provisions in these General Purchase Conditions is null and void, a provision to be considered valid shall be deemed to have been included in its place, as close as possible to the null and void provision. The same applies to provisions that DITT BV design+build cannot invoke for other reasons. The other provisions of these General Conditions of Purchase shall otherwise remain in force at all times.
Article 3 Offers and Assignment
1. Correspondence addressed to DITT BV design+build regarding the invitation, offer and Order, as well as the execution thereof, shall be in writing only. Such written correspondence in this context shall also include (excluding telefax messages) messages to be sent to the recipient via electronic data transmission. The contents of the latter messages shall have legal force vis-à-vis DITT BV design+build unless, where appropriate, it has expressly stated the contrary.
2. If the Contractor wishes to make an offer or accept an Order on the basis of deviating or additional purchase conditions or specifications, these deviations or additions must be notified to DITT BV design+build in advance and explicitly accepted by DITT BV design+build in writing.
3. If there are certain exclusions to the offer or Order, they must at all times be clearly and specifically included in writing. If the Contractor does not expressly exclude certain items, DITT BV design+build may assume that these items are part of the offer
c.q. Assignment.
4. DITT BV design+build confirms/issues an Order (possibly) following an offer of the Contractor to the Contractor only in writing.
5. The Contractor shall return to DITT BV design+build a duly signed original copy of the Order issued by DITT BV design+build no later than two weeks after the date of signature, but always prior to commencement of the performance of his Order (the same applies to any attachments attached thereto and to be signed).
6. If the Contractor fails to return the duly signed Order, including any attachments, within a specified period of time, DITT BV design+build is entitled to suspend (any) payment obligations arising from the Order until such time as the duly signed Order and any attachments without reservations and/or further deviating or additional purchase conditions from the side of the Contractor are in the possession of DITT BV design+build.
7. The Contractor is not permitted to subcontract the Work or parts thereof to third parties or to have the Work performed by means of hired or hired workers except with the written consent of DITT BV design+build and only on equal purchase conditions as apply between the Contractor and DITT BV design+build and on the basis of a written agreement.
Article 4 Prizes
1. The prices agreed between DITT BV design+build and the Contractor are fixed and exclusive of VAT. Changes in prices, wages, costs, social charges, taxes and any other cost-increasing factors are therefore not offsettable, unless expressly provided otherwise in the Order. If so, settlement will take place in accordance with the payment system included in the Assignment.
2. Prices are based on free delivery including. The Contractor is responsible for disposing of his waste and residual materials generated during work on the job and on the instructions of DITT BV design+build, unless otherwise provided in the Order.
3. Deliveries in deviation of what is stipulated in the Order will not be paid by DITT BV design+build unless DITT BV design+build has issued an additional Order in writing for this purpose.
4. Only additional or less work for which DITT BV design+build has given a written order or approval is eligible for reimbursement. Any additional or less work will be settled in accordance with the provisions of the agreement.
Article 5 Payment
1. Payment shall be made in accordance with a payment schedule to be drawn up by the Contractor and to be approved by DITT BV design+build, depending on the progress of the work respectively the delivery and approval by DITT BV design+build.
2. Payment shall be made thirty days after receipt of an invoice that meets the requirements specified in the Assignment, or in installments in accordance with the progress of what is described in the Assignment.
3. Where the Wet Ketenaansprakelijkheid is applicable, payment shall not be made until the Contractor has fulfilled all his obligations under that Act. The Contractor shall submit to DITT BV
design+build to demonstrate timely payment of wages, employee insurance premiums and payroll taxes due.
Article 6 Prohibition of assignment, pledge and transfer of ownership of claims
The Contractor is prohibited from assigning, pledging or transferring ownership of claims resulting from the Order issued by DITT BV design+build to a third party without the written consent of DITT BV design+build.
Article 7 Power of set-off
DITT BV design+build shall be entitled to set off its claims against the Contractor or (any) affiliate(s) of the Contractor for whatever reason, whether or not due and payable and whether or not subject to a time limit or condition, against that which DITT BV design+build owes or will owe to the Contractor.
Article 8 Obligations of Contractor
1. The Contractor is obliged to make his offer in accordance with the specifications given by DITT BV design+build in its application and guarantees that his offer has been made accordingly.
2. In case DITT BV design+build has invited two or more natural persons or legal entities to make an offer or has granted an Assignment, these natural persons or legal entities are jointly and severally bound Contractors and as such each is jointly and severally bound to fulfill all obligations under this invitation/assignment.
3. In case DITT BV design+build has issued an Order to a Company in formation or has invited an offer, the founders remain jointly and severally liable for fulfillment of all obligations flowing from the Order/invitation, also after ratification of the Order by the now incorporated company.
4. The Contractor is obliged to timely warn DITT BV design+build in writing of any errors, omissions and/or ambiguities in the data made available to the Contractor by or on behalf of DITT BV design+build. If the Contractor does not, does not timely or does not adequately fulfill the above obligation, the Contractor shall be in default and liable to DITT BV design+build for all damages resulting from his actions or omissions.
5. The Contractor shall inform DITT BV design+build in writing before the commencement of performance who represents him on the work and who is responsible for performance on site.
6. The Contractor shall be obliged to insure and keep insured against legal liability (including coverage for compensation of consequential damages) for a sufficient amount per occurrence.
Article 9 Implementation
1. The Contractor is obliged to perform the delivery or work assigned to him according to the requirements of good, sound and competent work and with the use of sound materials, suitable for the purpose for which they/they are intended and in accordance with the requirements of the agreement and the applicable regulations, guarantees and instructions of manufacturers, suppliers, government agencies, services and utilities.
2. The (delivery) period stated in the Order is binding on the Contractor, provided that DITT BV design+build has the right to further fix this (delivery) period without any claim for price change or any other compensation.
3. DITT BV design+build is entitled to (further) determine the order of deliveries or activities of the Contractor.
4. The Contractor is obliged to provide DITT BV design+build with all requested information regarding the Order.
Article 10 Progress
1. Work and deliveries shall be performed by the Contractor within the working hours specified in the Order.
2. Stagnation as a result of failure to deliver/perform materials/work in a timely manner or delivery/performance of faulty materials/work will be recovered from Contractor.
3. The Contractor shall immediately inform DITT BV design+build in writing as soon as he believes that he cannot timely or properly fulfill his obligations, this without prejudice to the liability for non-performance.
Article 11 Working conditions and safety
1. For his part of the work, the Contractor is obliged to take and maintain at least the safety measures required and appropriate under statutory and other regulations.
2. All Contractor’s equipment and tools shall comply with all legal requirements, including inspections. The inspection status must be demonstrable.
3. Contractor shall ensure that all employees use necessary personal protective equipment, including, but not limited to, a safety helmet and hearing protection. As a minimum, proper safety footwear and work clothes should be worn.
Article 12 Liability, damages and indemnification
1. Unless the Order provides otherwise, the transportation required for the execution of the Order, the loading, unloading or installation of goods and the storage of goods shall be at the expense and risk of the Contractor.
2. If the Contractor fails to perform on time or properly, he shall be liable to DITT BV design+build for all damages incurred by DITT BV design+build as a result, including trading losses and penalties for late delivery. The Contractor shall indemnify DITT BV design+build against all third party claims in this respect.
3. The Contractor is liable for damage caused by items or persons he has used/engaged for the performance of the Agreement.
4. Damage to the items to which his performance relates shall be borne by Contractor.
5. If the Contractor fails to comply with his obligations, DITT BV design+build shall give him written notice of default, granting him a reasonable period of time to still fulfill his obligations. Even before the period referred to in the previous sentence has expired, DITT BV design+build is entitled in urgent cases to take such measures as it deems expedient for the benefit of the work at the expense of the Contractor.
6. After expiry of the set time limit, DITT BV design+build shall be entitled to perform or have performed the performance at the expense of the Contractor and to suspend payment of the price related to the defective performance, without prejudice to the Client’s right to full or partial rescission or damages.
7. During the term that the Assignment or agreement continues and the maintenance period agreed therein, the Contractor guarantees the soundness of the agreed performance. Thereafter, the Contractor guarantees the absence of hidden defects in the manner and during the periods provided for in the Assignment or Agreement and further in a manner provided for by law.
8. The Contractor undertakes to indemnify and hold DITT BV design+build (procedurally) harmless from and against any and all damages, howsoever named, that may arise on the part of DITT BV design+build as a result of or in connection with the performance of the Order, as well as to compensate such damages to DITT BV design+build on demand, therefore without any notice of default or judicial intervention being required, including statutory interest due thereon. In that respect, DITT BV design+build reserves the right to set off (latent) payment obligations of the Contractor by means of deductions from the contract sum.
Article 13 Chain of custody liability
1. Where DITT BV design+build is jointly and severally liable under the Wet Ketenaansprakelijkheid for the social insurance contributions and payroll taxes owed by the Contractor in connection with its performance, it has the right to withhold those amounts from the payments to the Contractor and to pay them directly to the relevant industrial insurance board or receiver of direct taxes or to deposit them in the blocked account (G-rekening) mentioned in the Agreement, or the Contractor’s depository.
2. If DITT BV design+build, on the basis of the information available to it, can reasonably conclude that the Contractor has in fact paid a higher price for the performance of the Agreement.
wage bill CSV or higher percentage of social insurance contributions or payroll taxes will be payable than was established at the time of entering into the agreement, he shall be entitled to adjust those amounts or percentages, respectively.
3. DITT BV design+build may recover the full amount of unpaid taxes and/or premiums from the Contractor.
4. The Contractor is required to submit the necessary data for the administration of DITT BV design+build, including his business license and, on request of DITT BV design+build, a statement from the Tax Inspectorate and the Industrial Association regarding his payment record.
Article 14 Dissolution
If Contractor:
a. fails to deliver on time or on demand of DITT BV design+build respectively, or fails to fulfill any other obligation under the Order, or fails to do so on time, either;
b. fails to have the goods, services et cetera delivered meet the requirements of the Order with respect to quality, dimensions, tolerances et cetera (or, notwithstanding the provisions of the Order, in the opinion of DITT BV design+build reasonable requirements to be set thereon); or
c. files for his own bankruptcy, is declared bankrupt, applies for suspension of payments, is placed under administration, management or receivership, or;
d. faces a seizure of (a substantial part of) his assets, the latter at the discretion of DITT BV design+build, either;
e. ceases business operations or transfers control thereof to another person, unless in the latter case it is made plausible that the performance of the Engagement is not adversely affected thereby, or;
f. fails to fulfill its obligations under the Order, DITT BV design+build is entitled to rescind the Order in whole or in part (with respect to the part not yet performed). This possibility of dissolution does not affect the right of DITT BV design+build to carry out the Order itself or have it carried out.
2. For the circumstances mentioned under a, b and f, the right of DITT BV design+build to rescind the Order only exists when the Contractor is in default.
3. Upon termination of the Order in accordance with this article, settlement will take place on the basis of what has already been performed by the Contractor with settlement of all amounts receivable by DITT BV design+build from the Contractor, also based on the right of set-off as included in these General Purchase Conditions.
Article 15 Insurance
1. If insurance against damage, loss or destruction or any form of material damage has been taken out by DITT BV design+build, its terms of purchase are available for inspection at the office of DITT BV design+build. The Contractor also bears the obligations imposed on (co-)insureds by insurance purchasing conditions.
2. Without prejudice to the provisions regarding liability, the Contractor shall insure the financial consequences of his liability in the usual way, also for the benefit of DITT BV design+build, without reference to, exception for or passing on of insurance policies taken out previously or not, including liability insurance policies taken out by DITT BV design+build. Liabilities thus to be insured shall include in any case those relating to injury to persons and damage to property and resulting damages, including product liability.
3. In case of deployment of motor vehicles or moving cranes within the scope of the performance, liability insurance policies taken out by whomever under the Motor Insurance Liability Act and the rental provisions of the Federation of Dutch Crane Rental Companies shall take precedence over any other liability insurance policy of any party involved in the performance of DITT BV design+build when paying damages. The Contractor is required to ensure that such insurance is demonstrably in place.
Article 16 Inspection
DITT BV design+build has the right at any time to inspect the work etc. Such inspection does not release the Contractor from any obligation arising from the Order.
Article 19 Copyright and duty of confidentiality
1. The Contractor has an obligation of confidentiality towards third parties with respect to all documents originating from DITT BV design+build or other business information and knowledge in the broadest sense of the word, known to the Contractor, unless the execution of the Order requires otherwise.
2. Drawings, images and calculations provided by DITT BV design+build remain the property of DITT BV design+build and may not be reproduced or copied by the Contractor or disclosed to third parties or used in any other way than solely for the purpose of the Order. The aforementioned documents shall be returned by the Contractor to DITT BV design+build upon first request.
3. Matters and methods developed by the Contractor in cooperation with or on behalf of DITT BV design+build belong exclusively to DITT BV design+build and may not be made available to third parties without the written consent of DITT BV design+build.
4. The Contractor is obliged to indemnify DITT BV design+build against damages resulting from infringement of copyrights and/or patent rights of third parties, (including DITT BV design+build and the Principal) insofar as such infringement is related to the (performance of the) Order.
Article 20 Applicable law
1. Dutch law applies to all offers, acceptances, agreements, work, deliveries and other (legal) acts.
2. The applicability of the Vienna Sales Convention 1980 (CISG) is expressly excluded.
Article 21 Disputes
DITT BV design+build shall be entitled to submit any dispute arising from this Agreement over which the District Court of Almelo has absolute jurisdiction to the exclusive jurisdiction of the District Court of Almelo, at the option of DITT BV design+build, unless the parties agree otherwise.