Platoflex General Terms and Conditions of Delivery and Payment
1a. These terms and conditions apply to all offers, quotations, purchase agreements and agreements to carry out work. If an agreement provides otherwise than the present terms and conditions, these provisions shall only be valid if laid down in writing.
1b. General terms and conditions of the client shall not apply, unless accepted in writing by Platoflex.
1c. Information and advice provided by Platoflex is only of a general nature and without obligation.
2a. All offers are without obligation and valid for a limited period, unless explicitly stated otherwise. Offers are based on data, drawings, etc. provided by the client, which Platoflex may assume to be correct.
2b. The prices quoted are ex factory and exclusive of VAT and shipping costs. The content of leaflets, printed matter, etc. shall not bind Platoflex, unless explicitly referred to in the agreement.
3a. An agreement, oral or written, however named, shall only be concluded after explicit acceptance by Platoflex. The written confirmation from Platoflex to the client or the execution of the agreement by Platoflex constitutes explicit acceptance.
4 INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
4a. Unless agreed otherwise, Platoflex shall retain the copyrights, as well as all other industrial and intellectual property rights to the designs, sketches, images, drawings, models, software and offers it provides.
5a. Any necessary packaging is charged at cost price and not taken back. The necessity of the use of packaging is at the discretion of Platoflex.
6 MATERIALS AND DESIGN OF THE CLIENT
6a. Which materials are used to manufacture its products is at the sole discretion of Platoflex.
6b. With regard to offers Platoflex accepts no liability for any design worked out by or on behalf of the client, nor for any advice relating to such design or the execution of such design by third parties, whether or not on the instructions of the client. The client is solely responsible for the functional suitability of materials and designs specified by the client. Functional suitability is taken to mean the suitability of the material or the component for its purpose according to the design of the client.
6c. Platoflex does accept liability for its own designs. Please refer to the warranty provisions for more information.
6d. Platoflex never accepts any liability for materials, components and/or goods provided or made available by the client.
7a. Delivery takes place ex works, factory, yard or warehouse, at the discretion of Platoflex. Delivery times are approximate only. The delivery time is determined when agreement has been reached on all technical details, and all data, drawings, materials, etc. required for the execution of the work are in the possession of Platoflex, and any (partial) payments agreed have been received by Platoflex.
7b. The delivery time is determined assuming that Platoflex will be able to work as expected at the time of the offer, and that the required materials will be provided in good time. In principle a delay in delivery can only give rise to compensation if this has been agreed in writing. (In all other cases Platoflex is only liable to pay compensation for a delay in delivery if the client has given Platoflex written notice of default, granting Platoflex a reasonable term of at least half of the originally agreed delivery time to meet its obligations.)
7c. If the client fails to take delivery of the ordered products after expiry of the delivery time, the products remain at the disposal of the client and shall be stored at the risk and expense of the client. The client will be informed of the costs of this by email.
8 UNFORESEEN CIRCUMSTANCES
8a. If an agreement is concluded and Platoflex is unable to perform the agreement as a result of circumstances that were not known to Platoflex at the time the agreement was concluded, Platoflex has the right to demand that the agreement be amended in such a way as to enable it to perform the agreement.
8b. Furthermore, Platoflex has the right to suspend the performance of its obligations and shall not be in default if it is (temporarily) prevented from performing its obligations as a result of a change of circumstances that could not reasonably have been expected by Platoflex at the time the agreement was concluded and that is beyond its control.
8c. Circumstances that could not reasonably have been expected and are beyond the control of Platoflex include failure to comply with obligations by suppliers of Platoflex, fire, strike, work interruption or the loss of materials to be processed, import or trade prohibitions and force majeure.
8d. There is no right to suspend performance if performance is permanently impossible or if the temporary impossibility lasts for more than 6 (six) months, in which case the agreement between the parties shall be terminated without either party being entitled to compensation for losses suffered due to the termination.
8e. If Platoflex has partially performed its obligations, it shall be entitled to a proportional part of the agreed price based on the work already performed and costs incurred.
9a. The client shall ensure that all permits, exemptions and other decisions required for the execution of the order are obtained in good time.
9b. The absence of any required permits, exemptions or decisions, does not entitle the client to suspend the purchase of the ordered products or to suspend its payment obligations.
10a. Any installation is carried out based on the normal rate. The personnel charged with the installation only installs the materials or products delivered by Platoflex and/or the materials or products included in the order.
10b. Platoflex is not responsible or liable for any installation work outside the scope of the order.
10c. The client must ensure that Platoflex can carry out its work without interference. To that end the client must ensure, among other things, that the room where the work is carried out has gas, water and electricity and that the room is or can be heated, unless the nature of the agreement dictates otherwise. The client must ensure, at its own risk and expense, that suitable accommodation, adequate sanitary facilities and other facilities required under the Working Conditions Act are available to Platoflex personnel, and that the construction site has the necessary lockable, dry storage areas for materials, tools and other goods.
10d. If, through no fault of Platoflex, the installation cannot be carried out without interference or is delayed in any other way, Platoflex (i) shall not be liable for compensation for any delay, and (ii) shall be entitled to charge any resulting additional costs to the client, based on the normal rate.
10e. The client must be present when the work is completed and must check if the work has been carried out properly.
10f. Complaints regarding the work carried out or regarding the duration of the work, that are made after the installation personnel has left, will not be accepted, unless the client proves that it could not reasonably have discovered the defect at the time when the work was completed. In that case the client must lodge a complaint in writing within 5 (five) days of the discovery of the defect, granting Platoflex the opportunity to remedy the defect, provided that the complaint is made within the warranty period. The client must substantiate the defect with supporting documents and indicate how the defect was discovered.
11a. Platoflex is only liable for damage or loss suffered by the client if and to the extent that this damage or loss directly results from wilful misconduct or gross negligence of its employees.
11b. The total liability of Platoflex is at all times limited to compensation of the direct damage or loss. The total compensation amount to be paid by Platoflex to the client due to any obligation to cancel or any damage or loss suffered, shall never exceed the sum stipulated for the agreement (exclusive of VAT).
11c. Platoflex is not liable for any damage or loss if and to the extent that the client has taken out insurance for the damage or loss in question or could reasonably have taken out insurance for this damage or loss.
11d. The client indemnifies Platoflex against any and all third-party claims regarding the use of designs, drawings, samples, models, mould bases or other goods or data provided by the client. The client is liable for any and all costs and expenses resulting from these claims.
12a. The ordered products are transported at the risk and expense of the client. The client must insure itself against this risk.
12b. Should Platoflex not be allowed to invoke the provisions of article 12a, Platoflex shall never be liable for any compensation exceeding the amount it can claim from the carrier and/or insurer with regard to the loss or damage occurred during transport. At the request of the client Platoflex shall assign its claim on the carrier and/or insurer to the client.
13a. Platoflex warrants the proper execution of contracted work in terms of construction and materials to the extent that Platoflex had freedom of choice in this regard, on the understanding that it will arrange the delivery of new parts, free of charge, to replace all of the parts which become defective during a period of one year after delivery due to unsatisfactory construction and/or unsound materials. In that case the replaced parts become the property of Platoflex. Disassembly or assembly of these parts is at the expense of the client.
13b. In case of defective delivery or work Platoflex has the right, upon return of the defective products, to refund the client in full, to repair the defective products, or to re-deliver or re-work the products. New materials to be worked will be made available by the client at its expense.
13c. If products delivered by Platoflex are assembled by third parties and are not assembled, in the broadest sense of the word, in accordance with the requirements as documented by Platoflex and handed to the client, the rights under the warranty and any right to compensation of the client shall lapse.
13d. The client must at all times afford Platoflex a reasonable period to remedy any defect.
13e. Defects due to normal wear and tear, external influences, improper treatment or improper, incorrect or inadequate maintenance, or defects arisen after any alteration or repair carried out by the client or carried out by third parties on behalf of the client, are not covered by the warranty.
13f. The warranty shall only apply if the client has fulfilled all its obligations, financial and otherwise, towards Platoflex.
13g. Refer to the Platoflex website under warranties for the specific warranty terms and warranty period for a specific product.
14 PAYMENT TERMS
14a. Payment is made by deposit or transfer into a bank account designated by Platoflex. Platoflex has the right, both before and after the conclusion of the agreement, to require security for the payment or advance payment, suspending its performance of the agreement until such security has been provided and/or such advance payment has been received by Platoflex. If the client refuses to make an advance payment, Platoflex has the right to terminate the agreement and the client shall be liable for the ensuing loss for Platoflex.
14b. Platoflex at all times has the right to invoice partial deliveries separately.
14c. Payment is due within 15 (fifteen) days of the invoice date.
14d. Platoflex has the right to suspend the delivery of the products retained by it for the client in connection with the performance of the agreed work, until all payments owed by the client to Platoflex have been made in full.
14e. Platoflex also has the right, if the client fails to meet its payment obligations, to suspend the work, also if a fixed delivery time has been agreed.
14f. If Platoflex agrees to the principal amount or part thereof being paid in instalments with regard to certain goods delivered or work carried out, the VAT due on the entire amount will be payable with the first instalment.
14g. The client’s right to set off any claims on Platoflex is explicitly excluded.
14h. The entire purchase price or contract price shall in any case become immediately due and payable if payment has not been made on the agreed due date and/or if the client goes bankrupt, is granted suspension of payments, is placed under guardianship, if any assets or claims of the client are attached, if the client dies (if a natural person) or is liquidated or dissolved (if a legal person).
14i. If payment is not made within 15 (fifteen) days of the invoice date, Platoflex has the right to charge the client interest as compensation for loss of interest from the due date, at the statutory interest rate or at a minimum of 10% per year if the statutory interest is lower than 10%. Part of a month shall count as a full month.
14j. Platoflex also has the right, in addition to the principal claim and the interest, to claim all judicial and extrajudicial costs incurred as a result of non-payment or late payment. Extrajudicial costs are payable by the client, in any case if Platoflex has ensured the assistance of a third party for the collection of overdue amounts. The extrajudicial costs are calculated in accordance with the collection rates of the Netherlands Bar Association. From the mere fact that Platoflex has secured the assistance of a third party it is obvious that the other party shall be liable for extrajudicial costs. If Platoflex files a petition for the bankruptcy or liquidation of the client, the latter shall also owe the petition costs in addition to the principal amount, interest and extrajudicial costs.
15a. Upon the delivery of products the client must check the product or products delivered right away for visible damage and defects, and must check if the product or products delivered are in accordance with the agreement (in terms of agreed product, quality, quantity, etc.).
15b. If the product or products are not in accordance with the agreement, the client must notify Platoflex thereof in writing, stating the reasons, within 2 (two) days after delivery for visible defects, and within 2 (two) days after discovery, and in any case within 7 (seven) days after delivery, for invisible defects. Failing this, the client is deemed to have accepted the product or products. The client’s right of complaint shall lapse if the client fails to render its full cooperation to Platoflex’ investigation of the merits of the complaint submitted. The client must at all times allow Platoflex to inspect and examine the products.
15c. The submission of a complaint does not entitle the client to suspend its payment obligations towards Platoflex.
15d. Complaints with regard to invoices must be submitted in writing within 8 (eight) days after receipt of the invoice.
15e. The client loses its rights and powers with regard to defective products if the client fails to submit a complaint or notify Platoflex in writing within the above-mentioned periods and/or if the client has not granted Platoflex the opportunity to remedy the defects.
16 PRICE CHANGES
16a. The agreed prices are based on the cost of materials and wages applicable on the date of the offer.
16b. If the period between the date of the offer and the date of delivery or completion exceeds 3 (three) months and the wages or prices of materials and such have changed during this period, the agreed purchase price or contract price will be adjusted pro rata. Payment of any extra costs under this article is due at the same time as the principal amount or the last instalment of the principal amount.
17 RETENTION OF TITLE
17a. Title to the goods delivered or to be delivered by Platoflex shall only pass to the client under certain suspensive conditions. Platoflex retains title to the goods delivered or to be delivered as long as the client fails to meet its payment obligations under this agreement or similar agreements. Platoflex also retains title to the goods delivered or to be delivered as long as the client fails to pay for work carried out or to be carried out under such agreements and fails to pay for claims arising from the breach of such agreements, including claims relating to penalties, interest and costs.
17b. As long as the client has not paid the above-mentioned amounts owed, the client shall not be entitled to sell, hire out, provide on loan, seize, encumber with a pledge or non-possessory pledge, or otherwise encumber the goods delivered by Platoflex. The client undertakes, at Platoflex’ first request, to notify third parties wishing to encumber the goods that the client is not entitled to encumber the goods. Furthermore, the client undertakes not to sign any deed encumbering the goods. If the client would do so, this would constitute embezzlement.
17c. If the client fails to fulfil any obligation towards Platoflex under the agreement with regard to the goods sold or work to be carried out, Platoflex shall have the right, without any notice of default being required, to take back both the originally delivered goods and newly created goods. The client hereby authorises Platoflex to enter the premises where these goods are located.
18a. Full or partial termination of the agreement must be done in writing. Before the client terminates the agreement, the client must serve Platoflex a written notice of default and grant Platoflex a reasonable term to meet its obligations or to remedy any defects, which defects must be reported to Platoflex in detail.
18b. The client is not entitled to terminate the agreement in full or in part, or to suspend its obligations, if the client was already in default in the fulfilment of its obligations.
18c. If Platoflex agrees to termination, without being in default, it shall be entitled to compensation for any and all financial losses, such as costs, lost profits and reasonable costs to determine loss and liability. In case of partial termination the client cannot claim the undoing of performances already delivered by Platoflex and Platoflex shall be entitled to payment in full for the performances already delivered.
19 APPLICABLE LAW
19a. All agreements are governed by Dutch law.
Any and all disputes arising from or in connection with any offer or any ensuing agreement shall in the first instance be submitted to the Court of Utrecht, the Netherlands.
Platoflex explicitly chooses its business address as its address for service and the client chooses the delivery or billing address known to Platoflex as its address for service.
All notices and notifications from one party to the other party must be served at these addresses, including any documents with regard to any legal proceedings.