GENERAL TERMS AND CONDITIONS 5S COMPANY
Version: March 31, 2022
Article 1: Definitions
- 1.1 In these general terms and conditions, the following terms are used in the following sense, unless explicitly stated otherwise or unless the context indicates otherwise:
- a. P&D Company: The user of these general conditions: P&D Company B.V. trading under the names "5S Company'' and "CI Company", established at Drielandendreef 42 in Harderwijk, registered with the Chamber of Commerce under Chamber of Commerce number 68996608;
- b. Client: the legal entity or the natural person acting in the exercise of their profession or their business who enters into an agreement with P&D Company;
- c. Agreement: the agreement between P&D Company and the customer;
- d. Materials: all advice, concepts, texts and other materials and files developed or made available by P&D Company within the framework of the agreement;
- e. Location: the location where P&D Company, by order of the customer, should perform activities and/or where the materials should be assembled;
- f. Training: the training given by P&D Company.
P&D Company and the customer are hereinafter jointly referred to as 'parties' and each separately as 'party'.
Article 2: General
- 2.1 These general terms and conditions apply to every quotation of P&D Company and to every contract between P&D Company and the customer.
- 2.2 Deviations from these general conditions are only valid if expressly agreed in writing or by e-mail.
- 2.3 These terms and conditions also apply to contracts with P&D Company, the execution of which requires the involvement of third parties by P&D Company.
- 2.4 The applicability of any purchase or other conditions of the customer is explicitly rejected.
- 2.5 If one or more provisions of these general conditions at any time are wholly or partially invalid or void, the remaining provisions of these terms and conditions shall remain in full force and effect. The void or nullified provisions will be replaced by P&D Company, taking into account as far as possible the purpose and intent of the original provision(s).
- 2.6 If P&D Company does not always require strict compliance with these general conditions, this does not mean that the provisions of which are not applicable or that P&D Company would lose the right to require strict compliance with the provisions of these general conditions in other cases.
- 2.7 P&D Company has the right to change these terms and conditions. The version valid at the time of the conclusion of the agreement will always apply.
Article 3: Quotations, conclusion of the contract, cancellation and charges
- 3.1 All quotations and offers of P&D Company are without obligation.
- 3.2 Offers or quotations do not apply automatically to future agreements.
- 3.3 The contract will be concluded when the customer has expressly agreed to the offer of P&D Company.
- 3.4 If the customer cancels the contract prematurely, P&D Company has the right to charge the customer:
- a. All work already performed;
- All materials and items already purchased;
- c. A compensation for reserved working time.
- 3.5 If the agreement is changed, including an addition, P&D Company is entitled to execute it only after the customer has agreed to the price and other conditions stated for the execution, including the then to be determined time of execution. Not or not immediately implementing the amended agreement does not constitute a default of P&D Company and is no reason for the customer to cancel the agreement.
- 3.6 Without being in default, P&D Company can refuse a request to change the agreement if this could have qualitative and / or quantitative consequences for example, for the work to be performed or the goods to be supplied in that framework.
Article 4: Execution of the agreement
- 4.1 If for the execution of certain activities a period has been agreed or indicated, this is never a deadline. When exceeding a term, the customer must therefore give P&D Company written notice of default. P&D Company must be given a reasonable period to execute the agreement as yet.
- 4.2 P&D Company will execute the contract to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship.
- 4.3 The contract is an effort commitment and not a result commitment. The fee of P&D Company is not dependent on the result. The success is partly dependent on the cooperation of both parties and the commitment of the customer and his employees.
- 4.4 P&D Company cannot guarantee that the execution of the work will lead to the result desired by the customer, such as, but not limited to, higher productivity, more satisfied customers, more satisfied employees and/or more efficiency within the organization of the customer.
- 4.5 P&D Company has the right to have the agreement executed by a third party. If P&D Company hires a third party to execute the contract, then "P&D Company" will also mean the third party hired by P&D Company.
Article 5: Client obligations
- 5.1 The client will provide the facilities reasonably required by P&D Company at the location free of charge.
- 5.2 The customer will ensure that P&D Company has access to all items, data and systems which are necessary for P&D Company to perform the agreed work.
- 5.3 The client is obliged to inform P&D Company without delay of facts and circumstances which may be important in connection with the execution of the contract.
- 5.4 The customer must ensure that the location(s) where, the tools with which and the circumstances in which P&D Company must perform the work are safe and meet all legal requirements. The customer should take such measures that P&D Company, during the execution of the work, is protected against danger to life, limb and property.
- 5.5 The customer is obliged to use the supplied goods in accordance with the technical specifications and/or instructions for use of the goods.
- 5.6 The client will indemnify P&D Company against any claims by third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.
- 5.7 When the client could be in default in properly meeting his obligations to P&D Company, the client is liable for all damages on the part of P&D Company arising directly or indirectly.
Article 6: Training
- 6.1 The training will be given at the customer's location. The customer must provide a suitable room for the training in good time and free of charge.
- 6.2 P&D Company has the authority to deny further access to the training to an employee of the customer who misbehaves or otherwise unreasonably hinders or prevents the proper implementation of the training.
- 6.3 During the training, the employee of the customer should not be disturbed by incoming telephone calls, (text) messages, or e-mails, unless the employee has received permission from P&D Company.
- 6.4 Costs arising from damage and / or destruction caused by employees of the customer will, if not recoverable from the perpetrator(s) themselves, be paid by the customer.
Article 7: Delivery of goods
- 7.1 The delivery time notified to the customer is not to be considered as a strict deadline.
- 7.2 The items will be taken to the location by P&D Company or the items will be sent by P&D Company.
- 7.3 If the items are sent, then shipping costs will be charged to the customer. The amount of the shipping costs will be made known to the customer in advance.
Article 8: Assembly
- 8.1 If the parties have agreed on assembly, the customer must inform P&D Company of the location in advance.
- 8.2 The customer must ensure in good time that:
- a. The location is accessible at the agreed time;
- b. All reasonable facilities which are necessary for a good execution of the assembly work are present;
- c. The (architectural) construction is suitable for assembly;
- d. The assembly work can be carried out without interruptions.
Article 9: Warranty
- 9.1 A manufacturer's warranty is provided on the goods.
- 9.2 For more information on the manufacturer's warranty, the customer should consult the warranty conditions of the relevant manufacturer.
- 9.3 To make a claim under the warranty, the customer should contact the relevant manufacturer.
Article 10: Increase of rate
- 10.1 P&D Company is entitled to increase the agreed daily rate without the customer in that case being entitled to terminate the contract for that reason, if the increase in the daily rate is the result of a power or obligation under the law or regulations or is caused by an increase in wages or on other grounds which at the conclusion of the contract could not reasonably be foreseen.
Article 11: Invoicing and payment
- 11.1 Invoicing takes place monthly after the event.
- 11.2 Payment must always be made within 30 days of the invoice date.
- 11.3 If the customer fails to pay an invoice on time, the customer is legally in default and the customer owes the statutory commercial interest. The interest on the amount due and payable will be calculated from the time the customer is in default until the moment of payment of the full amount due.
- 11.4 The customer is never entitled to offset the amount he owes to P&D Company.
- 11.5 When the customer is in default or fails to meet his (timely) obligations, all judicial and extrajudicial costs incurred by P&D Company as a result will be borne by the customer. The extrajudicial collection costs will be calculated on the basis of the Collection Costs Act.
- 11.6 Any payment by the customer will first be used to pay the interest owed and then to pay the collection costs. Only after these amounts have been paid will any payment made by the Customer serve to settle the outstanding principal sum.
Article 12: Reservation of ownership
- 12.1 All items delivered and still to be delivered remain the exclusive property of P&D Company, until all claims which P&D Company has or will have on the customer have been paid in full.
- 12.2 As long as the ownership of the goods has not been transferred to the client, the client may not:
- a. Pledge;
- b. Grant third parties any other right to them;
- c. Resell them outside his normal business activities.
- 12.3 The client must do all that may reasonably be expected of him to safeguard the property rights of P&D Company.
- 12.4 If the client does not or not fully meet its obligations towards P&D Company and/or in the event of termination of the contract, for whatever reason, P&D Company is entitled to take back all goods which are the subject of the retention of title, without prior notice of default or judicial intervention, without prejudice to the right of P&D Company to full compensation.
- 12.5 If P&D Company wishes to use its right, as described in this article, the customer is obliged to give P&D Company access to all locations where the property of P&D Company is located. All costs which P&D Company will have to make to take back the goods, such as but not limited to dismantling costs, will be for the account of the customer.
- 12.6 When seizure, suspension of payment or bankruptcy, the customer will immediately inform P&D Company and inform the seizing bailiff, administrator or receiver of the (ownership) rights of P&D Company.
- 12.7 The provisions of this article do not affect the other rights accruing to P&D Company.
Article 13: Liability and limitation
- 13.1 P&D Company cannot be held to compensate for any damage, which is a direct or indirect consequence of:
- a. An event, which is in fact beyond its control and thus not attributable to its acts and / or omissions, as described in Article 14.1;
- b. Any act or omission on the part of the client, his subordinates or other persons employed by or on behalf of the client.
- 13.2 The customer is under all circumstances responsible for the correctness and completeness of the data and documents supplied by him. P&D Company will never be liable for any damage which is (partly) caused by the fact that the data and documents provided by the customer are incorrect and / or incomplete. The customer indemnifies P&D Company against all claims in this matter.
- 13.3 The customer is personally responsible for the decisions which the customer makes, whether or not following advice given by P&D Company.
- 13.4 P&D Company can not be held liable by the customer when the result of the work done by P&D Company does not meet the expectations of the customer.
- 13.5 The training is by nature result-oriented without guaranteeing results. P&D Company can never be held liable for results not achieved.
- 13.6 P&D Company is not liable for any damage whatsoever caused by improper or incompetent use of the product.
- 13.7 P&D Company is never liable for indirect damages, including but not limited to consequential damages, lost profits, lost sales, lost savings, reputational damage, labor costs, fines imposed and damage due to business interruption.
- 13.8 If P&D Company could be liable for any damage, the liability of P&D Company is limited to the amount paid out by the insurer of P&D Company. If, in any given case, the insurer will not pay out or the damage is not covered by the insurance, the liability of P&D Company is limited to a maximum of the invoice amount for the work to which the liability relates.
- 13.9 Claims and other powers of the customer for whatever reason against P&D Company will expire in any case after the expiry of 1 year from the moment when a fact occurs that the customer can use these rights and / or powers against P&D Company.
- 13.10 If the customer has made goods and/or materials and/or facilities available to P&D Company for the purpose of performing the work and these goods and/or materials and/or facilities are not suitable for the purpose for which they were made available to P&D Company, the customer will be liable for all damages arising from this.
Article 14: Force majeure
- 14.1 Force majeure includes in any case - but is not limited to -: data loss due to computer failure; virus infection or computer hacking by third parties; Internet and power failure; weather conditions; traffic disruptions; floods; landslides; terrorism; epidemics, war and riots; obstructions by third parties; strikes; fire; theft; government action; illness or personal (family) circumstances of the natural person who performs the contract on behalf of P&D Company.
- 14.2 In the case that P&D Company is prevented by force majeure from performing the work wholly or partly, P&D Company has the right, without judicial intervention, to suspend the execution of the work or to consider the contract as wholly or partly terminated, such at its option, without P&D Company being obliged to compensate any damage suffered by the customer. All work carried out up to the moment of suspension or termination will be charged to the customer.
Article 15: Suspension and dissolution
- 15.1 P&D Company is authorized to suspend the fulfillment of the obligations or to terminate the contract, if:
- a. The customer does not or not fully comply with the obligations under the contract and the customer has not responded to a sent notice. If compliance is permanently impossible, a notice of default may be omitted;
- b. After concluding the contract, P&D Company learns of circumstances giving good reason to fear that the customer will not meet the obligations;
- c. The customer requests or is granted a suspension of payments, if the customer is declared bankrupt or a request for such a declaration is filed, if the customer is unable to meet his debts, proceeds to terminate or liquidate his business, is placed under guardianship, or if a receiver is appointed.
- 15.2 Furthermore, P&D Company is authorized to terminate the contract if circumstances arise of such a nature that performance of the contract is impossible or can no longer be demanded by standards of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the contract can not reasonably be expected.
- 15.3 If P&D Company proceeds to suspension or dissolution, P&D Company is in no way obliged to pay for damages and costs arising in any way.
- 15.4 If the contract is terminated, the claims of P&D Company on the customer are due immediately. If P&D Company suspends performance of the obligations, P&D Company will retain its claims under the law and the contract.
- 15.5 P&D Company always reserves the right to claim damages.
Article 16: Intellectual property rights
- 16.1 Unless P&D Company and the customer have expressly agreed otherwise in writing, P&D Company is and will remain the full and exclusive owner of the intellectual property rights, such as, but not limited to copyright, which rest on the materials.
- 16.2 P&D Company grants the customer the right to use the materials exclusively within and for the benefit of his own organization. It is not allowed, without prior permission of P&D Company, to reproduce, publish or exploit the materials, unless the nature of the materials dictates otherwise.
- 16.3 If the customer acts in violation of the intellectual property rights of P&D Company, P&D Company has the right to terminate the contract immediately without the customer being entitled to any form of compensation and the customer will be liable for all damages suffered by P&D Company as a result. Damage in this context means in any case, but not exclusively, loss of turnover.
16.4 The client will indemnify P&D Company against claims by third parties relating to intellectual property rights on materials or data provided by the client, which are used in the execution of the contract.
Article 17: Confidentiality and processing of personal data
- 17.1 Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source in the context of their agreement. Information is considered to be confidential if the other party has communicated this or if this follows from the nature of the information. The party receiving confidential information will only use it for the purpose for which it was provided.
- 17.2 If P&D Company - on the basis of a statutory provision or a judicial decision - is bound to provide confidential information to third parties designated by law or by the competent court and P&D Company cannot, in this context, invoke a legal right to refuse, acknowledged or permitted by the competent court, then P&D Company is not bound to pay damages or compensation and the customer is not entitled to terminate the contract.
- 17.3 When, by order of the customer, P&D Company processes personal data, the arrangements in relation to the processing of personal data will be recorded in a processing agreement signed by both parties.
- 17.4 P&D Company will process personal data in accordance with the General Data Protection Regulation. For more information about the processing of personal data, the customer can consult the privacy statement of P&D Company, see the privacy statement (https://5scompany.nl/wp/privacy-statement/)
Article 18: Applicable law and competent court
- 18.1 All legal relationships to which P&D Company is a party, are exclusively governed by Dutch law.
- 18.2 All disputes between the customer and P&D Company arising from or in connection with the contract will, to the exclusion of all others, be settled by the competent court in the district where P&D Company is located.