Applicability
1a. These general terms and conditions apply to all offers, quotations, sales, deliveries, orders, and services performed by or on behalf of Procim B.V., established in Aalten and registered with the Chamber of Commerce under number 66355249, hereinafter also referred to as: "the company".
1b. As soon as these general terms and conditions apply between the company and another (legal) entity (hereinafter referred to as: customer), they will automatically continue to apply to all new agreements between the company and the customer, unless the parties expressly agree otherwise in writing. Furthermore, these general terms and conditions also apply, to the extent applicable, to all non-contractual relationships between the parties. If the company amends these general terms and conditions, these amended general terms and conditions will apply from the moment they are sent to the customer. The customer declares that they agree to these amended general terms and conditions now and for then, unless the customer objects in writing before entering into the relevant transaction. The customer's general terms and conditions are hereby expressly rejected.
1c. Deviations from these general terms and conditions are only possible if expressly agreed in writing. These amendments will then only apply to the relevant transaction. These general terms and conditions will continue to apply in full to all other transactions, including new ones.
1d. The company is at all times authorized to engage third parties in the context of the relationship with the customer. These general terms and conditions then also and directly apply between this third party and the customer. Such third parties can therefore always directly rely on these general terms and conditions to avoid their liability. Limitations of liability always apply to the total liability of the company and the third parties towards the customer and therefore do not accumulate per party held liable.
1. All orders are accepted and executed exclusively by the company, with the exception of Article 7:404 of the Dutch Civil Code and Article 7:407 paragraph 2 of the Dutch Civil Code.
Offer and agreement
2a. All quotes, price estimates, and offers from the company are entirely without obligation and remain valid for 30 days after submission by the company.
2b. The drawings, sketches, descriptions and the like drawn up by the company are only of an informal nature and are not binding.
2c. Acceptance of the order by the company can only occur upon receipt by the client of a written order confirmation from the company, or upon the company actually commencing execution of the order. An intermediary can never accept an order from the company.
2d. Quotations are based on the information provided by the customer, the accuracy and completeness of which the company may assume.
Financial provisions
3a. All prices used by the company exclude:
3b. If the agreement between the client and the company stipulates that the client will make periodic payments, the company is entitled to adjust the agreed fees and rates if it deems this necessary. Such an adjustment will only take effect one month after the company has notified the client in writing. Such an adjustment cannot be made during the first three months of the agreement.
Payment
4a. Payment by the customer of the agreed fee must be made, without discount or setoff, within 30 days of the invoice date by bank transfer to a bank account specified by the company in the currency stated on the company's delivery note/quotation/invoice. The company is entitled at all times to demand an advance payment of 50% of the total agreed fee upon acceptance of the order. The company is entitled at all times to pass on any exchange rate differences to the customer.
4b. If the company so requests, the customer must, in the company's opinion, provide sufficient security for payment of the fee. If and as long as this security is not provided by the customer upon request, the company is entitled to suspend its obligations.
4c. If the customer pays in multiple installments, these payments will first be applied to interest, then to costs, and finally to the oldest invoice, regardless of whether the customer specifies otherwise upon payment.
4d. If the customer fails to fulfill any obligation to the company, or fails to do so on time or in full, they will be in default by operation of law, without further notice of default being required, and will be required to pay default interest of 1% per month on the amount then due, from the moment the company should have received payment until the moment of payment. Furthermore, all other outstanding claims against the company in the customer's name will become immediately due and payable.
4e. The customer is never authorized to suspend their payment obligations to the company. Furthermore, the customer is not authorized to terminate the agreement with the company if the customer is in default.
4f. All costs associated with collecting the amount owed by the customer to the company, including, but not limited to, collection fees, bailiff fees, and attorney fees, both judicial and extrajudicial, shall be borne by the customer. These costs will amount to at least 15% of the relevant fee, with a minimum of €500.
Delivery
5a. The company's delivery of goods will take place "Ex Works" (Ex Works) as defined in the Incoterms 2020, unless expressly agreed otherwise in writing. This will only be different if delivery carriage paid has been expressly agreed upon, in which case delivery will take place at an easily accessible address in the Benelux specified by the customer. The costs of (import/export) duties, transport, loading and unloading, insurance, quality control, (mandatory) inspections, and testing are always borne by the customer.
5b. The risk of loss and/or damage to the goods passes to the customer upon delivery (ex works), even if delivery takes place earlier than agreed between the parties, regardless of whether the goods are available to the customer. Even in the case of carriage-paid delivery, transport is at the customer's risk, who must insure themselves against this risk if desired.
5c. If the customer fails to accept or allow the goods to be accepted at the agreed time of receipt, for whatever reason, the company shall be entitled to manage the goods for and on behalf of the customer or to sell and deliver them to third parties, at the company's discretion. Delivery to the customer shall then be deemed to have taken place. The customer shall at all times be obligated to pay all costs incurred by the company in this regard immediately upon the company's first request. Costs expressly include the amount the company receives less for the goods upon sale to third parties. If the company chooses to manage the goods for and on behalf of the customer, this shall be entirely at the customer's risk. This shall not affect the customer's payment obligation.
5d. If delivery is delayed or hindered for any reason, the customer is obligated to immediately reimburse all resulting costs at the company's first request, unless the delay or hindrance is the result of intent or gross negligence on the part of the company.
5. The stated delivery time is not a deadline for the company. The company is never liable for the consequences of delayed delivery, including any direct or indirect damage suffered by the customer. The customer is never entitled to suspend or otherwise fail to fulfill its obligations in the event of such a delay.
Execution of services
6a. When providing services, the company will only have an obligation of best efforts towards the customer and never an obligation of results.
6b. The customer is obligated at all times, on their own initiative or at the company's request, to provide the company with all information and data relevant to the company that are necessary for the correct execution of the agreement, regardless of whether it concerns the delivery of goods or services. The customer remains responsible for the accuracy of this information and data; any inaccuracy thereof can never be held against the company.
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7a. Upon delivery, the customer must, at his/her own expense and risk, inspect the quantity and quality of the delivered goods.
7b. If the customer believes that the quantity and/or quality does not conform to the agreement between the parties, the customer must notify the company verbally immediately upon delivery and subsequently confirm this within 5 days of delivery by registered letter. The company reserves the right at any time to inspect (or have inspected) complaints as referred to above. In such cases, the customer must make every effort to prevent further (consequential) damage.
7c. If the delivered goods, products, or services have been processed, the customer is deemed to have accepted the goods without reservation.
7d. If the complaint is justified, the company is only obligated to deliver replacement goods as soon as possible, or, if this is not physically possible, to cancel that part of the delivery and compensate the customer. The company is therefore never liable for any (in)direct damage suffered by the customer as a result. This does not affect the customer's obligations towards the company.
Retention of title
8a. The company retains ownership of all goods delivered by it until the customer has fulfilled all its (payment) obligations to the company, which expressly includes full payment of fees and costs. If the same goods have been delivered against one or more unpaid invoices, all similar goods present at the customer's premises will be deemed to have been delivered against the unpaid invoices. As long as the retention of title as referred to above continues, the company is irrevocably entitled and authorized to repossess the goods in question without judicial intervention, regardless of its further actions against the customer. The foregoing does not affect the other provisions of this agreement, in particular with regard to the transfer of risk.
8b. As long as the company's aforementioned retention of title exists, the customer is not entitled to dispose of or process any goods delivered by the company, nor to enter into any legal transactions in this regard, unless the company has given its written approval for this, as well as for the conditions under which all such transactions take place. The customer must at all times take reasonable care of the goods in question.
8c. If the customer fails to fulfill its obligations to the company in a timely manner and the customer has, whether authorized or not, delivered the goods to one or more third parties, the customer is obligated to transfer to the company, at the company's first request, all rights the customer may exercise against these third parties. Also in fulfillment of this obligation, the customer will, at the company's first request, immediately pledge all its rights arising from such delivery against the said third parties to the company and authorize the company to notify the said third parties of this pledge. If and to the extent necessary, the customer grants the company an irrevocable power of attorney to do so by placing the order. The customer is obligated to provide all necessary cooperation in the foregoing.
Intellectual property rights
9a. The company retains all intellectual property rights to the designs, drawings, sketches, and quotes it provides. Regardless of whether fees have been charged for these, they remain the property of the company and may not be copied, shown to third parties, or used in any other way without its permission.
9b All intellectual property rights to all goods or services delivered by the company to the client or made available in any way whatsoever remain exclusively with the company or a supplier authorized by the company to make them available to the client, and are never transferred to the client. Unless otherwise agreed in writing, the delivery or provision of goods or services to the client does not constitute a transfer of intellectual property rights.
9c. The customer is at all times obligated to sell and deliver the goods purchased from the company under the brand name used by the company. 9d. If and as soon as the customer discovers an infringement of the rights referred to in this article, they must immediately notify the company. It is then up to the company to determine whether, and if so, how, it wishes to take action against these infringements. The customer is never authorized to take action themselves.
9th. If the company takes action in any way against an infringement as referred to in paragraph d of this article, the customer is obligated, without any compensation, to fully cooperate with the actions that the company, whether voluntary or not, must take to protect said rights.
Force majeur
10. The company is in no way liable for the failure, untimely, or improper fulfillment of its obligations to the customer if this failure, untimely, or improper fulfillment is the result of a circumstance beyond the company's control. These circumstances include (but are not limited to): vandalism, strikes, government measures, fire, water, frost and storm damage, occupation of premises, computer failures, power outages, machinery defects, transport difficulties, and other circumstances that disrupt the regular operation of the company or its suppliers.
Termination
11. If the Customer applies for or obtains a suspension of payments – provisional or otherwise – the Customer is declared bankrupt or bankruptcy is requested, the Customer is declared subject to the debt restructuring scheme for natural persons, or the Customer otherwise becomes insolvent; an attachment is made against the Customer; the Customer terminates, merges or splits its business in any way whatsoever; the Customer is dissolved or liquidated in any way whatsoever; the Customer transfers its business, or at least (in parts) a substantial part(s) thereof, or alienates (part of) the control over its or its business in any way whatsoever; If the customer fails to fulfill any obligation under the agreement concluded between the parties, in the latter case but not until the customer has been given notice of default and has failed to fulfill its obligations for two weeks thereafter, the company is entitled, without further notice of default and without becoming liable for damages to the customer or third parties in any way, to immediately terminate the agreements existing between the company and the customer, without prejudice to the customer's obligation to pay full compensation to the company. If the agreement ends as a result of the provisions of this article, all amounts owed or to be owed by the customer to the company under agreements between the company and the customer or the performance thereof shall become immediately and fully due and payable. Termination of an agreement pursuant to the foregoing shall not affect any right to performance of existing obligations against the company or any claim for compensation by the company.
Warranty
12a. The company provides a warranty on the goods it supplies for 12 months after delivery, unless expressly agreed otherwise in writing. Any goods or parts thereof that may develop defects during this period due to defective construction or materials will be repaired or replaced (at the company's discretion) free of charge, provided that such defects are notified to the company in writing immediately upon discovery and in any case within the periods specified in Article 7. This warranty does not apply to the following cases:
12b. If the customer carries out or has repairs or modifications carried out during the warranty period without prior permission, the company's warranty obligation will immediately expire. The customer is not entitled to refuse payment on the grounds that the company has not fulfilled its warranty obligation (in full) or has not fulfilled it on time.
Liability
13a. The company is never liable for any damage suffered by the customer due to shortcomings of the company and/or its (non-)subordinate assistants (expressly including third parties engaged by the company) in the performance of any agreement concluded between the parties, unless the damage is the direct result of intent or gross negligence on the part of the company. Under no circumstances is the company liable for damage if it arises as a result of an action instructed by the customer to the company.
13b. If and to the extent that the company is liable for damages to the customer for any reason whatsoever, this liability is limited to a maximum of the amount of the agreed fee (excluding VAT) for the relevant agreement, which has already been paid by the customer.
13c. De klant is gehouden de vennootschap te allen tijde schadeloos te houden en te vrijwaren voor alle aanspraken van derden die voortvloeien uit of verband houden met de overeenkomst tussen de vennootschap en de klant, behoudens voor zover deze aanspraken het gevolg zijn van opzet of grove schuld van de vennootschap.
13d. A claim for compensation must be received in writing by the company no later than one month after the customer discovered the damage or could reasonably have discovered it, otherwise the right to compensation will lapse.
Portability
14. The company is entitled at any time to transfer its rights and/or obligations towards the customer, in whole or in part, to a third party, who will then become the contracting party in its place. The customer hereby gives its irrevocable and unconditional consent for this contract transfer. The contract transfer will take effect as soon as the company, also on behalf of the person transferring the relevant rights and obligations, notifies the customer thereof in writing.
Cancellation
15. If and as soon as the company has commenced the execution of the order which the customer has placed with the company, the customer, if the order is subsequently cancelled for any reason whatsoever, is obliged to immediately pay the agreed fee as well as all other costs incurred by the company as a result of the cancellation.
Applicable law
16a. All agreements between the company and the customer are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention (CISG) is excluded.
16b. Alle geschillen, die voortvloeien uit deze overeenkomst, zullen worden voorgelegd en beslecht door de bevoegde rechter in het arrondissement waar de vennootschap haar statutaire zetel heeft.
Privacy & data processing
17a. The company processes personal data of business customers as the controller (GDPR). If the company processes personal data on behalf of the customer, it is considered the processor; the provisions of this GDPR then apply as a data processing agreement, unless a separate agreement exists.
17b. The processing primarily involves contact, identification, contract, and billing data for the purposes of contract execution, customer management, invoicing, service, quality and safety assurance, and legal obligations. Marketing is only conducted with consent or in accordance with the Telecommunications Act.
17c. Personal data will not be retained longer than necessary or legally required.
17d. The company takes appropriate technical and organizational measures to protect data.
17e. Data subjects can request access, correction, deletion, restriction, portability, and objection via info@procim.nl. The company will respond within the statutory timeframes.
17f. Processing as a processor (in the absence of a separate agreement). Key points are:
Other
18. If any provision of these terms and conditions is invalid, in whole or in part, for any reason whatsoever, the agreement and these terms and conditions will otherwise remain in full force and effect, while the parties are deemed to have agreed, with respect to the invalid provision, on the basis that it most closely reflects the legally valid intent of the invalid provision. The company is entitled to amend these terms and conditions. The amendment will apply from the moment the company notifies the customer of the amendment in writing.