General Terms and Conditions of Delivery of the private limited liability company MSI-Sign Group BV, established in Gameren, the Netherlands, filed with the trade register of the Chamber of Commerce and Industry for Rivierenland under number 11051149.
1.1. The company MSI-Sign Group as the user of these General Terms and Conditions is referred to as “we” and “us”, while the party we enter into a legal relationship with is referred to as “customer”, regardless of the nature of the legal relationship. These General Terms and Conditions apply to all our offers and to all agreements to be concluded with us – also in the future – even if they are not yet explicitly stipulated – including the conclusion and execution thereof, irrespective of the nature of the offer and/or the agreement.
1.2. We expressly reject the applicability of general terms and conditions of our customers.
1.3. Special conditions deviating from these General Terms and Conditions only apply in relation to the agreement for which they have been accepted. The other General Terms and Conditions remain in full force.
2.0. Offer and acceptance
2.1. Our offers and/or advice are without obligation, regardless of the form. An agreement is only concluded by our written confirmation and on the day of its dispatch. The same applies to additions, changes and/or agreements.
2.2. We are not bound by information (drawing or image, size or weight, sample or model, etc.) concerning the object of offer or agreement, unless we explicitly confirm this in writing.
2.3. If the customer is represented by a third party, this third party conditionally guarantees to us the existence and extent of their authority to represent. If the customer should dispute this authority in whole or in part, this third party will be obliged to compensate us for damages due to breach of the guarantee obligation.
2.4. Despite the conclusion of the agreement, we remain authorised either to cancel the agreement within 4 weeks, in which case the customer will be released from their obligations towards us, or to require the customer to find a solution with us if circumstances could lead to us not being able to meet the unaltered maintenance of the agreement. If negotiations do not lead to a solution, we will still be entitled to cancel the agreement, in which case the customer will be released from their obligations towards us. In all cases, we will not be obliged to pay compensation for damages.
3.1. Our rates are based on all financial data known to us at the time of the offer or the conclusion of the agreement, regardless of its nature. We will be authorised to charge the customer any subsequent changes to this financial data, without the customer being authorised to dissolve the agreement in whole or in part.
4.0. Delivery, force majeure and limitation of damages
4.1. A date or term stated by us is without obligation and will never be regarded as a deadline. In the event that the customer asks us to perform on a certain date and we are unable to comply with it, we are authorised to require the customer to find a solution with us. If negotiation does not lead to a solution, we are authorised to cancel the agreement, in which case we will be released from any obligation towards the customer.
4.2. We are authorised to deliver in parts and the customer is obliged to pay accordingly.
4.3. Deviation from what we have agreed with regard to format, colour or quality, etc. will be permitted and will not constitute grounds for complaint.
4.4. A shortcoming can only be imputed to us and will only give rise to our obligation to pay compensation for the damage caused, if the shortcoming is due to our own intent or our own gross negligence in the performance of an agreement. We will not be liable for the selection of subordinates, auxiliaries and/or materials.
4.5. In addition to non-attributable shortcomings, force majeure on our part also includes all circumstances which are due to our own fault or negligence in the performance of an agreement as well as all circumstances which we would be liable for by virtue of law, (legal) act or generally accepted views, including the mistakes of subordinates, auxiliaries and/or materials, subject to provisions of compulsory law.
4.6. In the event of attributable failure as referred to under 4.4., we will be authorised, in the event of temporary inability to fulfil the agreement, despite default, to fulfil the agreement for a period of 2 months without the customer being entitled to dissolve the agreement and/or compensation.
4.7. In the event of attributable failure as referred to under 4.4. we will be authorised, in the event of permanent impossibility of performance as well as in the event that the period of two months as referred to under d.6. has expired, either to cancel the agreement, in which case the customer will be released from their obligations towards us, or to require the customer to find a solution with us. If negotiation does not lead to a solution, we are still authorised to cancel the agreement, in which case the customer will be released from their obligations towards us.
4.8. In the event of force majeure as referred to under 4.5, we will be authorised, in the event of temporary inability to perform, to still perform after the situation of force majeure has ended, without the customer being entitled to compensation for damage and/or dissolution of the agreement.
4.9. In the event of force majeure as referred to under 4.5, we will be authorised, in the event of permanent impossibility of performance, either to cancel the agreement, in which case the customer will be released from their obligations towards us, or to require the customer to find a solution with us. If negotiations do not lead to a solution, we will still be authorised to cancel the agreement, in which case the customer will be released from their obligations towards us.
4.10. We are exclusively authorised to determine whether it is a case of temporary or permanent impossibility of performance.
4.11 Regardless of the effect and/or consequences of the preceding provisions 4.1 to 4.10, we will never be obliged to compensate damage up to an amount, either higher than a part to be determined in all reasonableness and fairness of a maximum of 10% of the price of the transaction, or higher than the payment made by a company, which will have been or will be paid to us pursuant to any insurance agreement concluded by us, at our discretion.
4.12. The customer indemnifies us during and after performance of the agreement against claims from third parties.
4.13. All supplies manufactured and/or used by us for the execution of the agreement, both material and immaterial, will remain our actual and/or intellectual property, regardless of whether we have charged the customer for them.
4.14. The risk in connection with delivery will pass to the customer as soon as the goods are on their premises or under their control or as much earlier as we have notified the customer that the goods have been customised and are ready for transport and/or delivery. From that moment, we are released from any liability.
5.1. The customer guarantees, free of charge, that the execution of our work will take place without any impediment or any delay, on the date or term stated.
5.2. The customer guarantees, free of charge, that their site is and remains fully accessible and suitable – also with a view to safety regulations – for the use of mobile material from the start of the execution of our work.
5.3. The customer guarantees, free of charge, the presence of construction and/or assembly facilities such as electricity, water, compressed air, etc. necessary for the execution of our work, as well as construction facilities of a general nature for the benefit of the persons charged with the execution of our work.
5.4. Any shortcoming in the fulfilment of one or more of the aforementioned obligations, irrespective of the cause, will be at the customer’s sole risk without the customer being entitled to invoke force majeure. We are authorised to charge for any loss arising from and/or connected with any failure on the part of the customer, in which case the customer is obliged to pay.
5.5. Transport from and to the construction site takes place at the customer’s expense, to be calculated from our place of business.
5.6. The execution of our work is at the expense and risk of the customer. The customer indemnifies us against all claims from third parties.
6.1. Commissioning can only take place under our supervision.
6.2. Delivery, not immediately followed by commissioning under our supervision, will be deemed to be acceptance of the goods at the customer’s expense and risk with forfeiture of the right to complain.
6.3. Immediately after delivery, the customer is obliged to put the goods into operation and/or to inspect them. The right of complaint expires within 7 days after delivery.
6.4. Complaints can only be made in writing with a clear indication of the defect.
6.5. In the event of a timely and founded complaint, we are at all times authorised, at our discretion, to repair the defect and/or replace the good, without the customer being entitled to compensation for damage and/or dissolution of the agreement.
6.6. We are not liable for the consequences of defects in goods delivered by us.
7.0. Retention of title
7.1. Until the moment of full compliance by the customer with all obligations arising from this agreement and agreements already concluded with them, all goods delivered remain our property.
7.2. Until the above-mentioned moment, the customer is not authorised to establish any rights on our goods for the benefit of third parties.
8.1. The customer will make payment to us, unless we indicate otherwise, within 8 days after sending our invoice, without discount or invoking set-off based on failure or complaint, failing which the customer will be in default by operation of law.
8.2. In the event of default, the customer will owe interest on account of delay of 2% per month, part of a month to be counted as a whole month, to be calculated each month on the principal sum plus the interest already due.
8.3. In the event of default, the customer is also obliged to reimburse all our expenses for legal assistance both in and out of court, subject to our authority to provisionally estimate the amount of the compensation due to us at a fixation, not subject to judicial moderation, of 15% of the principal sum increased by the interest already due.
8.4. There is an attributable failure on the part of the customer each time immediately in the event – irrespective of the nature of the cause – that they do not or not properly comply, or do not comply in time with any obligation arising for them from this agreement and other agreements concluded with them, including these General Terms and Conditions, without prior notice of default being necessary.
8.5. In the event of attributable failure as referred to under 8.4, the customer will be unconditionally obliged to pay compensation for damages and all that the customer owes pursuant to this agreement and other agreements concluded with them will be immediately due and payable.
8.6. We are authorised, without notice of default and/or judicial intervention, to declare this agreement and other agreements concluded with us wholly or partially dissolved or to suspend the execution thereof, subject to our right to compensation for damage, interest and costs, if the customer:
– in is default imputably;
– is declared bankrupt or has been petitioned for bankruptcy;
– has been granted a (provisional) suspension of payment or has been requested to do so;
– enters into an extrajudicial debt settlement agreement or if so requested;
– transfers or discontinues all or part of their business;
– loses a licence or registration required for their company;
– has to deal with attachments of any kind;
– dies or commences the liquidation of all or part of its company and/or assets;
– is irrevocably sentenced to a term of imprisonment or a fine under the Economic Offences Act;
– chooses another place of residence or establishment without valid reason;
– has made an incorrect or incomplete statement or has concealed circumstances, in so far as the incorrectness, incompleteness or concealment is of such a nature that it is exclusively at our discretion that we would not have concluded the agreement, at least not on the same conditions, if we had known about it beforehand.
9.0. Other provisions
9.1. The customer indemnifies us against claims from third parties for infringement of intellectual property rights.
9.2. The customer is not authorised to make manuals and/or drawings relating to goods delivered by us available to third parties for inspection or disposal.
9.3. If we have taken a position on a customer’s claim, after three months counting from the day on which we have informed the customer or their authorised representative of our position, all rights against us with regard to the fact on which the claim was based will lapse, unless the customer has brought their claim before the court within the aforementioned period of three months and has disputed our position.
10.0. Applicable law/disputes
10.1. Only Dutch law is applicable
10.2 All disputes will be settled exclusively by the competent court in Utrecht, unless we prefer arbitration by the Council of Arbitration for the Metal Industry and Trade (Raad van Arbitrage voor de Metaalnijverheid en handel).