Terms and Condictions
Article Definitions In these General Terms and Conditions the following terms are used in the following sense: - Contractor: BORLEY Outdoor Kitchens, including companies affiliated to BORLEY Outdoor Kitchens. - Consumer: the person not acting in the exercise of a profession or business, or the person acting in the exercise of a profession or business if the agreement concerned is not related to the professional activity of that person. - Client: the other party to the Contractor. - Agreement: the agreement between Contractor and Client. - General Terms and Conditions: The General Terms and Conditions of Contractor. - Written: in writing or via an Electronic Communication Medium. - Electronic Communication Medium: email, whatsapp, SMS, the contact form via the Contractor's website, or any electronic communication medium used by the Contractor. - Working Day(s): Monday up to and including Friday, with the exception of a generally recognised rest day or public holiday at the place of execution or delivery, or a day of rest or public holidays as prescribed by the government or by or pursuant to a collective labour agreement, the building holiday period, or any other holiday or ADV day and/or other collective day off.
Article General 1. The provisions of the General Terms and Conditions apply to every current and future offer, quote and/or agreement between the Contractor and a Client to which the Contractor has declared the General Terms and Conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in Writing. 2. The General Terms and Conditions also apply to all agreements with the Contractor, for the execution of which third parties have been or will be engaged. 3. If one or more provisions of the General Conditions are null and void or may be annulled, the other provisions of the General Conditions will remain fully applicable. The Contractor and the Client will then consult in order to agree on new provisions to replace the void or nullified provisions, whereby if and insofar as possible the purpose and meaning of the original provision will be observed. Article Electronic communication 1. If the Client makes use of an Electronic Communication Medium, the Client shall take on the risk of the use thereof and shall be responsible towards the Contractor to take proper measures to prevent unintended and/or unlawful use of such a electronic communication medium. 2. If the Client uses or has available an Electronic Communication Medium for contact via message with the Contractor, the Client will always be presumed to be the sender or recipient of a message via the Electronic Communication Medium, subject to evidence contrary from the Client. Article Representation 1. The Client is entitled to appoint one or more representatives to act as his representitive. The Client shall promptly notify the Contractor thereof In Writing. The Client's authorised representative shall represent the Client insofar as the authority to do so has been fully notified to the Contractor In Writing. 2. The Contractor is exclusively represented by the management of the Contractor. The Contractor will not be bound by agreements and/or arrangements made with staff members or other representatives. The contractor only becomes bound by agreements or arrangements made with staff members or other representatives if the management of the contractor explicitly agrees to the Agreement or arrangements or implements the Agreement or arrangements. Article Agreement and offers 1. Quotes from the Contractor are always without obligation and can only be accepted In Writing and without deviations. If reservations or changes to the offer are made in the acceptance of the quote, in deviation from the provisions in the previous paragraph, the Agreement will only be final if the Contractor has informed the Client that he agrees to these deviations from the offer or has started to carry out the work. 2. The period for acceptance of offers is 14 days from the date of the offer. 3. A compiled quote will not oblige the Contractor to deliver part of the project at a corresponding part of the quoted price. Article Specific provision concerning the Client 1. The Client will ensure that the Contractor has the following in a timely manner: a. all information available to the Client, insofar as this is necessary for the completion of the work and any maintenance; b. unhindered access for personnel and/or equipment to the site and/or the location where the work is to be completed; c. the necessary permits, exemptions, decrees and/or the necessary permits, exemptions, orders and/or consents as further described in Article ); d. all data and/or goods which the Contractor indicates are necessary or which the Client should reasonably understand are necessary for the performance of the Agreement. e. the locations of pipe work and/or the results of a Klic report (https://zakelijk.kadaster.nl/-/klic-melding). f. the forklift trucks, shovels, aerial work platforms and/or hoisting cranes required by the Contractor. g. the necessary drawing work h. construction calculations. If the above has not been met or not been met in time, the Contractor shall be entitled to suspend the performance of the Agreement and/or to charge the Client for the additional costs arising from the delay in accordance with the usual rates. In any case, the delivery period will be extended by the duration of the delay, with a minimum of 21 Working Days. 2. The Client must exempt the Contractor against any claims from third parties who suffer damage in connection with the performance of the Agreement and which is attributable to the Client. 3. The Client is responsible for the content of the changes he has instructed. If necessary, the Contractor will point out the consequences of changes by the Client. 4. If the Client prescribes delivery of certain goods to the Contractor, the Client shall bear the risk of the functional unsuitability of goods. This is the case if goods by their nature or otherwise are not suitable for the purpose for which they are intended according to the Agreement. If the Contractor has justified doubts about the quality and/or suitability of goods chosen by the Client, the Contractor is entitled to suspend its obligations under the Agreement until the Client provides convincing evidence of their functional suitability. 5. The Client shall ensure that the Contractor can carry out his work undisturbed at the agreed time or during the agreed period at the agreed location. 6. The Client is always and at their own expense and risk responsible for obtaining (government) subsidies. 7. The Client may not, except with the Written approval of the Contractor, transfer its rights and obligations under the Agreement to another party, either in whole or in part. Article Specific provisions concerning Contractor 1. The Contractor shall perform the Agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of knowledge known at that time. The contractor will carry out the Agreement in such a way that the performance meets the requirements arising from the Agreement, based on the normal use for which the performance is intended. 2. The contractor is authorised to have (parts of) the work performed by (independent) assistants. 3. The Contractor is not obliged to contract with an assistant designated by the Client, if the Contractor does not wish to accept the contract terms of this designated person. The Client must exempt the Contractor against all consequences (such as damages, fines and/or costs) relating to the Foreign Nationals (Employment) Act for the engagement of assistant designated by the Client. 4. The Contractor is not liable for damage, of whatever nature, because the Contractor has relied on incorrect and/or incomplete data provided by the Client, or for the functional unsuitability of goods. 5. The contractor is entitled to submit phases or elements to the client for testing or approval. 6. The contractor must perform the work in such a way that neither the client nor third parties are unnecessarily inconvenienced and that damage to persons, property or the environment is limited as much as possible. 7. The contractor is liable (with due observance of Article 15) for damage to the work or (other) property of the Client, insofar as this is caused by the execution of the work and is attributable to the negligence, carelessness or wrongful acts of the contractor, his personnel, assistants, subcontractors, or suppliers. 8. Contractor is entitled to place advertising on the work site during the work. 9. The contractor will not be obliged to go beyond a general check of information, designs, drawings, calculations, and specifications provided by or on behalf of the customer against the standards of the landscaping profession. The check by the technical contractor of goods to be delivered by the customer will not include more than an external visual inspection for visible damage, checking numbers and/or dimensions. 10. The contractor will not carry out any guarantees given by third parties (e.g. factory guarantees). 11. If the Contractor is commissioned to carry out factory guarantees, these will be carried out on the basis of subsequent calculation at the hourly rates applicable with the Contractor at the time of commissioning. Article Permits etc. and soil 1. If it has been agreed that the contractor shall arrange for the necessary permits, exemptions, orders or consents, the client is obliged to give the contractor all cooperation required to obtain these. 2. If a permit, dispensation, order or permission is not reasonably granted or is not or will not be granted in time, the parties shall consult with each other and, if necessary, amend or dissolve the Agreement. In the event of dissolution, Article 14 paragraph 3 shall apply mutatis mutandis. 3. The contractor is not liable for the consequences of asbestos and/or (soil) contamination found on or in the site or buildings during the execution of the work. The contractor will remove the asbestos and/or contamination (or have it removed) as additional work. If this additional work cannot reasonably be demanded of the contractor because of its extent, the contractor shall be entitled to amend or dissolve the Agreement. In case of dissolution, article paragraph shall apply accordingly. Article Deadlines 1. Delivery or completion deadlines are indicative and, if exceeded, do not entitle the Customer to dissolution or damage compensation, unless expressly agreed otherwise. 2. Rights of action and other powers of the Client for whatever reason towards the Contractor and/or its auxiliary persons in connection with an agreement or by virtue of a wrongful act shall lapse one year after the moment the Client became aware or could reasonably have become aware of the existence of these rights and/or powers. 3. By way of derogation from paragraph 2, a limitation period of one year shall apply to the Client acting in the capacity of Consumer. 4. Acts of limitation may only be performed by registered letter or bailiff's writ. Article Models, colours, deviations 1. Models, trial samples and/or sketches shown by the Client and/or Contractor are indicative without the actions of the Contractor having to correspond to them. 2. Deviations between the work delivered on the one hand and the original design, drawings, copy or model, colour or typesetting or other proof, on the other hand, may not constitute grounds for rejection, discount, dissolution of the Agreement or damages if they are of minor importance. 3. The Client shall inspect goods to be assembled by the Contractor for correct quality, colour or deviations in reasonable time and before assembly and report complaints thereof to the Contractor in writing and with reasons immediately and at the latest within 24 hours after delivery of the goods on location. Failing to do this will result in the goods being assembled and shall be deemed approved and in accordance with the Agreement and at that time the right of complaint shall lapse. The costs of dismantling/replacement shall be charged to the Client as additional work on a cost-plus basis after this period has expired, at the hourly rate applicable at the Contractor. Article Prices and invoicing 1. The rates and prices used by the Contractor are in EURO and inclusive of VAT and any other government levies, as well as any costs to be incurred in the context of the Agreement, including parking, shipping, transport, storage, packaging, and administration costs, unless stated otherwise. Also excluded are the costs of renting a forklift, shovel and/or excavator and/or aerial platform. 2. Each partial delivery, including deliveries of parts of a composite order, may be invoiced separately. 3. The Contractor is entitled to invoice the work in instalments to be determined by the Contractor. If the payment obligations are exceeded, the contractor is entitled to suspend the work. The period of (completion) delivery will be extended by the number of days that invoices of the Contractor are overdue. 4. If no price has been agreed upon, a price has only been given by way of indication, or there is additional work, the contractor's wages will be calculated on subsequent calculation at the contractor's usual rates, increased by the costs incurred by the contractor. 5. A price indication is not a guide price. Prices quoted by the Contractor are only valid as a guide price if the Contractor has explicitly indicated a price In Writing as a guide price. 6. By derogation from Section 7:752 paragraph 2 of the Dutch Civil Code, a guide price quoted by the Contractor may be exceeded by a maximum of 20%. 7. The Contractor may pass on price increases if the Contractor can demonstrate that significant price changes (of 5% or more) have occurred between the time of the offer and the execution of the Agreement regarding, for example, materials, wages, raw materials, or rental prices. A Customer who is a Consumer shall, in the event of a price increase within three (3) months of the conclusion of the Agreement, be entitled to dissolve the Agreement, unless Contractor is still willing to perform the Agreement on the basis of the original price. In case of dissolution, article 14 paragraph 3 shall apply accordingly. 8. The Contractor is entitled to index the hourly rates and/or unit prices used by the Contractor annually as of 1 January in accordance with the Consumer Price Index (CPI). Article Changes to the Agreement 1. The Client is entitled to instruct changes to the Contractor. In doing so, the Contractor will indicate as much as possible whether a change entails more or less work. 2. The Contractor is not obliged to carry out a change ordered by the Client if: a. the change has not been ordered in writing, or b. the implementation of the change would result in an unacceptable disruption of the work according to standards of reasonableness and fairness, or c. the implementation of the change would result in the Contractor being obliged to carry out work that exceeds his technical knowledge and/or capacity, or d. the implementation of the change would be unacceptable to the Contractor according to standards of reasonableness and fairness, taking into account the mutual interests. 3. If the Contractor refuses to carry out an ordered change, it will notify the Client as soon as possible. 4. The Contractor is entitled to change documents or work, insofar as the result thereof complies with the provisions of the Agreement. 5. If during the execution of the Agreement it appears that for a proper execution it is necessary to change and/or supplement the activities to be performed, the parties will timely and in mutual consultation adjust the Agreement accordingly. 6. If the parties agree that the Agreement will be amended and/or supplemented, the time of completion of the execution may be affected as a result. The Contractor will inform the Client of this as soon as possible. The Client shall then be deemed to agree to the extension of the term. 7. If the amendment and / or addition to the Agreement has financial and / or qualitative consequences, the Contractor will inform the Client as soon as possible. 8. Notwithstanding the provisions hereof, the Contractor will not be able to charge additional costs if the amendment or supplement is the result of circumstances attributable to him.
Article Payment 1. Payment shall be made within 14 days of the invoice date, in a manner to be indicated by the Contractor in the currency in which the invoice was written. 2. The Client must notify the Contractor in writing of any objections to the Contractor's invoice within 8 days of the invoice date, by default the Client shall be deemed to have approved the invoice and the invoice amount after the 8 day period. Objections to the invoice do not suspend the payment obligation. 3. The contractor immediately becomes in default by the mere expiry of a payment term. After expiry of a payment term, the Client shall owe a contractual interest of 1% per month, unless the statutory (commercial) interest rate is higher in which case the statutory (commercial) interest rate shall apply. For Clients not acting in the exercise of a profession and/or business, a contractual interest rate of 0.70% per month applies. The interest on the amount due and payable will be calculated from the moment the Client is in default until the moment of payment of the full amount. 4. In case of merger, alienation of (part of) the company, liquidation, (application for) bankruptcy, (conservatory) seizure or (application for) suspension of payments, important changes in the Client's company management, Contractor's claims on the Client shall be immediately due and payable. 5. The Contractor is entitled to have the payments made by the client go first to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and the current interest. The Contractor may, without thereby being in default, refuse an offer of payment if the client designates a different order of allocation. Contractor can refuse full repayment of the principal sum, if this does not include the interest still due, the current interest and the costs. 6. If a payment term is exceeded, the client owes the Contractor extrajudicial collection costs. If the Client acts in the exercise of profession and/or business, the extrajudicial collection costs shall be at least € 250 per invoice. Article Completion 1. The Contractor's work will be considered completed if: a. the Client has approved the work; b. the work has been put into use by the Client, or part of the work has been put into use by the Client; c. The Contractor has notified the Client In Writing that the work has been completed and the Client has not notified the Contractor In Writing within 5 Working Days after the day of such notification that the work has not been approved, stating the points of completion; d. The Client does not approve the Work on account of minor defects or missing parts which can be repaired or delivered after delivery within the usual invoice payment term (with a minimum of 21 Working Days) and which do not prevent the Work from being put into use. 2. If the Client does not approve the work, the Client shall be obliged to give the Contractor the opportunity to provide repair with a period of at least 21 Working Days, counting from the Written notification of completion points by the Client. 3. The sending of the last instalment invoice to the Client shall be deemed to be a notification that the Work has been completed and (except for more/less work) is ready for delivery. 4. The Client shall indemnify the Contractor against claims by third parties for damage to parts of the work that have not been completed caused by the use of parts of the work that have already been completed. 5. For every day or part thereof: a. that the Contractor cannot perform the agreed work without interruption, and/or b. a payment term is exceeded by the Client, and/or c. the Client otherwise fails to provide the necessary information as included in Article 1 under a to h, then the delivery term will be extended by one full Working Day for every day that the failure continues. Article Retention of title and security 1. All goods delivered by Contractor shall remain the property of Contractor until Client has fulfilled all following obligations from all agreements concluded with Contractor. 2. The Client is not authorised to pledge or in any other way encumber the goods falling under the retention of title. 3. If third parties seize the goods delivered under retention of title or wish to establish or assert rights to them, the Client is obligated to inform the Contractor thereof as soon as possible. 4. In the event that the contractor wishes to exercise his property rights referred to in this article, the client hereby gives unconditional and irrevocable permission to the contractor or third parties to be appointed by the contractor to enter all those places where the property of the contractor is located and to repossess those goods. 5. If the goods delivered by the Contractor at the location of the work and/or a storage location and/or the premises of the Client have been mixed with goods belonging to third parties or the Client, the goods designated by the Contractor shall be deemed to be the Contractor's goods up to the number and same type. 6. As security for the fulfilment of his current and future payment obligations towards the Contractor, the Principal pledges to the Contractor all his current and/or future claims (hereinafter: "goods") from current and/or future legal relationships to the Contractor. In case of disclosure of the pledge to the Debtor, the Contractor is also entitled to pledge future claims from future legal relationships. The Contractor is always entitled to register the pledge of the goods with the Tax Authorities and communicate the pledge of the goods to creditors of the client and receive payment. The Contractor is irrevocably authorised to pledge the goods (whether through a proxy holder or not) to himself on behalf of the client. Article Suspension and dissolution 1. Contractor is authorised to suspend the fulfilment of the obligations or to dissolve the Agreement if: - Client does not fulfil or does not fully fulfil the obligations under the Agreement. - after the Agreement has been concluded, circumstances come to the attention of the Contractor which give good reason to fear that the Client will not fulfil the obligations. In case there is good reason to fear that the Client will only partially or improperly fulfil its obligations, suspension is only allowed to the extent justified by the shortcoming. - Principal was requested to provide security for the fulfilment of his obligations under the Agreement when the Agreement was concluded, and this security is not provided or is insufficient. As soon as security has been provided, the authority to suspend performance lapses, unless such performance has been unreasonably delayed as a result. - Client loses free control over his assets or has applied for or is involved in an application to dissolve the community of property (of matrimonial property) of which Client is a member. - a petition for bankruptcy is filed against the Client, or there is a (Provisional) Suspension of Payments, or an application is made by the Client for admission to the WSNP. - the plot on which the work is or was performed by the Contractor is put up for sale. - the Client leaves the Netherlands. 2. If the Client dissolves, cancels, terminates or otherwise terminates the Agreement, the Contractor is entitled to compensation in accordance with Article 7:764 paragraph 2 of the Civil Code. Article Liability 1. The Client is obliged towards the Contractor to ensure the work and its movable and immovable property and/or auxiliary persons and to keep them insured against damage, loss and/or theft. 2. The Contractor's liability is limited to the amount paid out under the insurance taken out by the Client. If the insurer does not pay out or if the incident is not covered by the insurance, the contractor's liability is limited to an amount equal to 15% of the invoiced and paid contract sum or price. The total liability of the Contractor vis-à-vis the Client(s) concerned shall under no circumstances exceed € 5,000. 2. The contractor shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption. 3. The maximum amounts in this article do not apply if the damage was caused by intent or conscious recklessness of the Contractor's management. 4. The Contractor is not liable for damage of any kind that arises because or after the Client has put the work into use, treated or processed it, delivered it to third parties, or has had it put into use, treated or processed or delivered it to third parties, respectively. 5. Any limitation or exclusion of liability in these General Terms and Conditions may also be invoked against the Client by the Contractor's suppliers, subcontractors, or auxiliary persons. Article Force majeure 1. The parties are not obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to fault, and which is not for their account by virtue of the law, a legal act or generally accepted practice. 2. In these General Terms and Conditions, force majeure shall in any case include but not be limited to (threat or consequences of): war, threat of war, civil war, riots, civil unrest, terrorism, strikes, sit-down strikes, lockouts, fire, environmental and water damage, floods, government measures, disruptions in the supply of energy and operating supplies, construction stops, unavailability of auxiliary persons or machinery, sudden disability of employees, epidemic, pandemic, computer network failures, unworkable days, work strike unworkable weather (such at the discretion of the Contractor) and other events which may lead to stagnation in the regular course of business within an office and which are not reasonably for the account or risk of the Contractor, those obligations shall be suspended until the time that the Contractor is still able to perform in the agreed manner, without the Contractor being in default with regard to the performance of its obligations and without it being liable for any damages. 3. The contractor also has the right to invoke force majeure if the circumstance preventing (further) fulfilment occurs after the contractor should have fulfilled his obligation. 4. The parties may suspend the obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the Agreement without any obligation to compensate the other party for damages. 5. Insofar as the Contractor has already partly fulfilled his obligations under the Agreement at the time of the occurrence of force majeure or will be able to fulfil them, article 14 paragraph 3 shall apply accordingly. Article Intellectual property and copyrights 1. All intellectual property rights are vested in Contractor. 2. All documents provided by the Contractor, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended for use by the Client and may not be reproduced, disclosed or brought to the notice of third parties by the Client without the prior consent of the Contractor, unless the nature of the documents provided dictates otherwise. 3. Any use, reproduction or disclosure of the works that falls outside the right of use of paragraph 2 shall be considered a copyright infringement. The Client shall pay an immediately due and payable penalty, not subject to judicial mitigation, of once the invoice amount for the works, or at least the invoice and/or agreed amount of which the works form part, per infringing act to the Contractor, without prejudice to the Contractor's right to be compensated for its losses due to the infringement or to be allowed to take other legal action to have the infringement terminated. Article Disputes 1. Any present and future agreement between Contractor and Client shall be governed by Dutch law. International Sale of Goods (CISG) is explicitly excluded. 2. The Dutch court is competent to take cognisance of disputes under the current and/or future agreement and/or General Terms and Conditions and/or other legal provisions.