GENERAL TERMS AND CONDITIONS
Article 1: Definitions and applicability
1. In these general terms and conditions the following definitions shall apply:
a. Contractor: V.A. Fabrication B.V., registered in the trade register under number 83824006, as well as V.A. Engineering B.V., registered in the trade register under number 76827135 and V.A. Projects B.V., registered in the trade register under number 87520982, all established at Nijverheidsweg 3A in 5492 NK Sint-Oedenrode.
b. Client: the other party of Contractor.
c. Assignment: the work to be performed or the service to be provided.
d. Agreement: the agreed arrangements between Principal and Contractor regarding the Assignment to be performed.
2. These general terms and conditions shall apply to all offers and/or quotations made by the Contractor, to all agreements concluded between the Contractor and the Client (respectively their legal successors) and to all agreements arising therefrom.
3. The applicability of the Client’s general terms and conditions is explicitly rejected.
4. Any stipulations deviating from these terms and conditions shall only be effective if and insofar as the Engaged Firm has expressly confirmed them to the Client in writing. Unless explicitly agreed otherwise in writing, these deviations from or additions to the General Terms and Conditions will only apply to the Agreement in question.
5. The Contractor reserves the right to amend these General Terms and Conditions in the interim. Amendments shall be announced in writing and shall take effect 14 days after announcement. The amended general terms and conditions will also apply to existing Agreements from that time.
6. If one or more provisions of these general terms and conditions are null and void or annulled, the other provisions of these terms and conditions shall remain fully applicable. The Client and the Contractor will then consult on a new provision to replace the nullified provision, taking into account as much as possible the purpose and purport of the original provision.
7. In the event of any conflict between the content of the Agreement concluded between the Client and the Contractor and these terms and conditions, the provisions in question will prevail.
Article 2: Quotations and offers
1. The offers and/or quotations made by the Contractor are without obligation; they are valid for 30 days after issuance, unless otherwise indicated in the offer or quotation. Contractor is only bound to the offers or quotations if the acceptance thereof is confirmed by the Client in writing within 30 days, unless another period is given in the offer or quotation.
2. The prices in the said offers or quotations are exclusive of VAT and other government levies and are stated in euros as standard.
3. The quotation or offer does not include transport costs, travel costs, accommodation costs, storage costs, packaging costs and costs for loading, unloading and disposal of materials or waste, unless explicitly stated otherwise.
4. If the Client provides the Contractor with information for the offer or quotation, the Contractor may assume the accuracy and completeness of this information and will base its offer or quotation on it.
5. Offers or quotations do not automatically apply to future assignments. 6. An offer or quotation is only intended for the Client and may not be shown to third parties with a view to obtaining a comparable/competitive quotation or to obtaining any advantage for himself and/or third parties.
Article 3: Conclusion of the Agreement
1. The Agreement is established at the moment the Contractor receives a signed order confirmation or quotation from the Client. The order confirmation is deemed to accurately and completely reflect the Agreement. The Contractor is free to prove that the Agreement was established by other means.
2. If an order is given verbally, or if the order confirmation has not (yet) been signed and returned, the order will be deemed to have been concluded under the applicability of these general terms and conditions at the time that the Contractor starts to perform the Agreement at the Client’s request.
Article 4: ASN (KNAF) / FIA certificates
1. Provider performs the work according to the requirements set by the FIA in the homologation regulations (HR), in order to make an ASN (KNAF) or FIA certified roll cage.
2. The Contractor shall issue the certificate upon completion of the work.
3. The Client is responsible for registering vehicles/objects with certified roll cages, in order to use them for motorsport and racing.
4. If the Client requires other work that does not conform to the requirements for the FIA/KNAF, no certificate will be issued by the Contractor.
5. After execution of the order and delivery, the certificate is the responsibility of the Principal. If any changes/modification are subsequently made or items added by a third party other than the Contractor, the certificate may thereby expire. The Contractor is not liable for this.
Article 5: Rights and obligations of Principal
1. The Principal is liable for the functional unsuitability of the parts or materials prescribed by him (or his supplier).
2. If the commencement of the work is delayed due to circumstances attributable to the Client, the Client shall compensate the Contractor for the related damage and costs incurred or suffered by the Contractor or the additional work shall be charged by the Contractor.
3. The Client bears the risk of damage caused by or defects in aids and materials made available or required by him, inaccuracies in the constructions and working methods required by the Client, defects in the object on which the work is performed. If the Contractor is aware of a defect, he will point it out to the Client.
4. The Client is not permitted to recruit or employ Contractor’s personnel without Contractor’s express written permission. If this article is violated, the Client will owe an immediately payable penalty of €50,000.
Article 6: Rights and obligations of the Contractor
1. The Contractor shall perform the work according to the requirements of good workmanship. The work will be performed within the Contractor’s normal working hours, unless otherwise agreed. 2. The Contractor is authorized to have the work carried out by others under its direction and, with regard to parts, also to leave the direction to others.
3. The Contractor shall ensure that the Work is performed by persons authorized to do so. 4. The Contractor may implement price increases if they are the result of changes in regulations or amendments to the Agreement, provided that the Contractor was not aware of these changes at the time the Agreement was concluded.
5. The Contractor is not liable for the work performed if the Client requires execution of certain work with unsound materials, and the Contractor has warned the Client about this.
6. Removed parts will not be returned to the Client, unless expressly agreed otherwise.
Article 7: Execution and deadlines
1. The Agreement between the Client and the Contractor is entered into for an indefinite period, unless the nature, content or purport of the Agreement dictates otherwise or the parties expressly agree otherwise in writing. Any agreed delivery times are indicative.
2. Where a deadline has been agreed for the performance of the work and/or delivery of goods by the Contractor, this is never a deadline. If the term of performance is exceeded, the Client must first give the Contracted Party written notice of default and offer a reasonable period of time in which to still comply.
3. In the event of delayed delivery or completion, the Client shall not be entitled to refuse acceptance or completion.
4. If there is a situation of force majeure and the circumstances are attributable to the Client, the Contractor cannot be required to (complete) deliver the work within the agreed period and is entitled to a reasonable extension of time.
Article 8: Processing of personal data
1. The Contractor shall process personal data in accordance with the General Data Protection Regulation (hereinafter: AVG).
2. Contractor processes personal data for the following purposes:
a. To maintain contact and relationship with the Client;
b. To perform Contracts;
c. To exchange personal data with third parties to the extent necessary for the performance of the Agreement;
d. For performing (targeted) marketing and sales activities, such as providing information about other products and services of the Contractor that may be of interest to the Client;
e. To comply with legal obligations.
3. The Contractor may engage third parties. These third parties may process data in the capacity of (sub)processor.
4. Contractor has taken adequate technical and organizational measures to secure personal data against loss or unlawful use.
5. The Client or a data subject may request access to the data the Contractor processes about the person concerned. In addition, the Client may ask the Engaged Firm to change or delete this data. Within four weeks, Provider will provide an overview of the personal data. If there are inaccuracies in the personal data, Principal or the person concerned should submit a request for amendment or deletion. For this, Provider may charge a statutory fee.
6. Provider shall only provide personal data to third parties if there is a legal obligation to do so or if this results from the Agreement or on the basis of consent. The Client is responsible for providing this personal data in accordance with the law.
Article 9: Delivery and transfer of risk
1. The work will be considered delivered when the Contractor notifies the Client that the work has been completed and the Client has accepted (approved) the work. The work will also be considered delivered if the parties jointly declare this in writing or if the Client takes the vehicle/object back with him after completion of the work.
2. The Client shall be obliged to notify the Contractor within 48 hours after delivery (not counting weekends, holidays and collective holidays) of any defects, which were discovered upon delivery without extensive examination by him. If the Principal fails to report such defects, the work shall be deemed approved and delivered.
3. In the event of a dispute over delivery points, the Contractor shall examine the vehicle/object. If it appears that a complaint is justified, the Contractor shall have the choice between adjustment of the price charged, improvement or repair at no cost, redoing the work in question, supplying similar products or not (or no longer) carrying out the order in whole or in part against a proportionate refund of the price paid by the Client.
4. Minor defects shall not prevent delivery.
5. After delivery, the vehicle/object is at the Client’s risk. The Contractor is released from liability for defects that the Client should reasonably have discovered at the time of delivery. The Contractor is also not liable for damage that occurs during transport after delivery.
6. After delivery, the risk of the vehicle/object passes to the Principal. Transport is always at the expense and risk of the Client. Contractor is in no way responsible or liable for transport. Client is responsible for taking out adequate transport insurance if this is reasonable in view of the transport.
Article 10: Prices
1. The prices quoted by Contractor are exclusive of VAT and are based on the price-determining factors applicable at the time of the order.
2. If an Order for additional work is granted, Contractor will be obliged to pass on the resulting costs.
3. The Contractor shall be entitled to increase the price on the basis of cost-increasing circumstances which come to light without being attributable to the Contractor or which the Contractor should not have taken into account when determining the price. Cost increases may result from, among other things, incorrect or incomplete data or interim changes in purchase prices (of materials).
4. If only a target price has been determined, Client shall owe a reasonable price consisting of Contractor’s usual hourly rates multiplied by the number of hours worked plus material and product costs.
5. Contractor is entitled to index its hourly rate annually according to the CBS Consumer Price Index with a mark-up (unless it is negative any year).
6. Contractor is entitled to increase the price or hourly rate. In case of statutory price increases, Contractor is always entitled to implement them. If the Client is a natural person (consumer), and the price increases by more than 10% within three months after the Agreement is concluded, the consumer has the right to dissolve the Agreement. This right does not apply to business relations, not being a natural person.
Article 11: Payment
1. Payment of invoices sent by the Contractor must be made within 14 days of the invoice date. Payment must be made in euros by means of deposit or transfer into a bank account set up in favor of the Contractor, unless the parties have explicitly agreed otherwise. Objections to the amount of the invoices or complaints do not suspend the Principal’s payment obligation.
2. If the Client is in default of payment of an invoice, the Contractor is entitled to suspend subsequent work until the invoice is paid in full. In addition, Contractor retains the right to damages and other claims under the law. 3. The Contractor is entitled to request an advance payment of costs.
4. If an Agreement is entered into by two or more Clients, insofar as the work is performed for the joint Clients, they are jointly and severally liable for payment of the amounts due, regardless of the name on the invoice.
5. The Client is not permitted to set off amounts owed against any claims against the Contractor without the Client’s express consent. 6. If a Client fails to make payment within the specified period, the Client shall be in default by operation of law without further notice of default. Client shall then owe Contractor a contractual interest rate of 12% per annum. If the Principal is a consumer, he shall owe the statutory interest rate.
7. If after the expiry of the first payment term the payment obligation has not or not fully been fulfilled, Contractor shall send a written reminder to pay the invoice within a second term.
8. If after this second term the payment obligation is still not met, the Client will owe the extrajudicial costs according to the BIK scale, with a minimum of € 150.
Article 12: Uncollected Goods
1. The Client is obliged to take delivery of the item or items that are the subject of the Agreement at the agreed location after the delivery time or execution period has expired. The Client must cooperate in this.
2. If goods are not taken delivery of, the Contracted Party will be entitled to store these goods at the Principal’s expense and risk.
3. The Client will be given a reasonable period in which to collect the goods. If an item has still not been collected after 1 month and no response to requests has been received, Octrooibureau Novopatent may exercise its statutory right of retention and retain the vehicle/object.
Article 13: Termination, cancellation, suspension and dissolution
1. The Client is not entitled to terminate or cancel the Agreement, unless the Contractor agrees.
2. Upon consent to cancellation or rescission, the Client will owe the Contractor an immediately payable amount of the agreed price, less savings. This compensation shall be at least 10% of the agreed price.
3. Where a price depends on hours incurred and work actually performed, the compensation shall be estimated at the total costs, labor hours and profit the Contractor would be expected to have incurred over the entire assignment.
4. The Contractor always reserves the right to claim damages. 5. Termination or cancellation shall be in writing by e-mail or (registered) mail. The canceller must prove receipt of an e-mail or postal item.
6. The Contracted Party will be entitled to suspend the fulfillment of the obligations or to dissolve the Agreement if the Client fails to fulfill the obligations under the Agreement in full. In addition, the Contracted Party will also have the right to suspend the obligations or dissolve the Agreement (in part) if, after the Agreement has been concluded, circumstances arise that give good reason to fear that the Client will not fulfill the obligations or will not fulfill them properly or in full. Suspension is only permitted to the extent justified by the failure.
7. The parties are entitled to dissolve the Agreement by virtue of the law (article 6:265 Civil Code).
8. If the Agreement is dissolved, the claims are immediately due and payable. If the Client suspends its obligations, it shall retain its claims under the law and the Agreement.
Article 14: Warranty
1. No warranty is given on the work performed by the Contractor because the vehicles/objects are used for sports, racing and other special purposes. 2. No warranty is given on temporary emergency repairs.
3. If the Client discovers any damage or defect, he must report it to the Contractor as soon as possible.
4. Should the Contractor have given a warranty on a product or part, this warranty will in any case lapse if the Client tries to solve a defect himself or has it solved by a third party. Warranty also does not apply in the event that the item has been inexpertly used or maintained.
5. If a part under factory warranty is no longer available, Contractor may replace this part for a comparable part. Any difference in the new price may be charged to the Client.
Article 15: Liability and indemnity
1. Should the Contracted Party be liable, this liability shall be limited to the provisions of this article.
2. In connection with work performed on military vehicles, mining fire engines racing and sports cars, rally cars and related vehicles and similar vehicles/objects, due to the special nature of these vehicles/objects and their extraordinary use, all liability of the Contractor is excluded. For work on other vehicles not related to sport, race or rally, the Contractor’s liability is limited to a maximum of once the invoice value of the order in question. Damage shall mean only damage to property and direct property damage.
3. Not eligible for compensation is immaterial damage, consequential damage, delay damage, personal injury damage, indirect damage, loss of profit, missed turnover, missed savings, business stagnation, loss of production, damage to persons, damage to other vehicles, depreciation or loss of products and damage caused by intent or deliberate recklessness of auxiliary persons or non-managerial subordinates of Contractor.
4. The Contractor shall always have the right to prevent or reduce as far as possible any damage suffered or incurred by the Client.
5. The Contracted Party will not be liable for damage caused to or by material supplied by the Client if the assignment cannot be properly executed with it.
6. The Contractor shall not be liable for damages arising from Client supplied specifications, requirements, specifications, drawings or instructions or the like.
7. Client shall indemnify Contractor against all third party claims resulting from a product supplied by Client to a third party and of which the products or materials supplied by Contractor form part. Client shall be obliged to compensate all damage suffered by Contractor in this connection, including the (full) costs of defense.
8. Client shall indemnify Contractor, its subordinates and auxiliary persons against claims by third parties regarding intellectual property rights on the vehicles/objects, materials and data provided by Client.
9. The Principal shall indemnify the Contractor against any claims from third parties who suffer damage in connection with the performance of the Agreement that is attributable to the Principal.
10. The Client shall indemnify the Contractor against third party claims for damages caused by the fact that the Client provided the Contractor with inaccurate or incomplete information.
11. The Client shall also indemnify the Contracted Party against claims from third parties in which the Contracted Party is deemed to be a co-perpetrator with the Client.
Article 16: Retention of title and revocation
1. All goods delivered shall remain the Contractor’s property until they have been paid for in full by the Client.
2. Until that time, the Client is prohibited from pledging the goods or giving them as security in any form whatsoever, or resupplying them to third parties.
3. The Contractor is entitled to take possession of these goods if the Principal is in default of fulfilling his payment obligations under the Agreement.
Article 17: Force majeure
1. The Contractor is not obliged to fulfill any obligation if it is prevented from doing so as a result of a circumstance that is not due to its fault, nor for its account by virtue of the law, a legal act or generally accepted legal opinion.
2. Force majeure shall include, in addition to what is understood in law and jurisprudence in this respect: illness of the Contractor or its employees, strikes, cancellation and/or delay of purchase materials, cancellation/delay of auxiliary persons, suppliers or third parties engaged by the Contractor, fire, electricity failures, system or network failures, flooding, pandemic, war, as well as all external causes, foreseen or unforeseen, over which the Contractor cannot exercise any control, as a result of which the Contractor is unable to fulfill its obligations.
3. During the period of force majeure, the Contractor is entitled to suspend its obligations under the Agreement. If this period lasts longer than two months, either party is entitled to terminate the Agreement, without any obligation to compensate the other party for damages.
Article 18: Complaints
1. After delivery, Client must inspect the work and report any complaints or defects to Contractor immediately, but in any case within 48 hours.
2. Any other complaint must be reported in writing to the Contractor within 14 days after the date of dispatch of the invoice or day on which the work was performed or a delivery was received, on pain of forfeiture of all claims, as soon as possible after the discovery of the defect. The complaint must contain as detailed a description of the defect as possible, so that the Contractor can respond adequately.
3. In the event of a justified complaint, the Contractor has the choice between adjusting the price charged, improving or redoing the work in question free of charge, rectifying the defect, redelivering a (similar) product or ceasing to perform the Agreement in whole or in part against a proportionate refund of the price already paid by the Client.
Article 19: Intellectual Property
1. All copyrights and other rights of intellectual or industrial property on products, documentation, equipment, designs, descriptions, drawings, models, budgets, calculations or other materials such as analyses, documentation, reports, quotations as well as preparatory materials thereof, are vested exclusively in the Contractor, unless otherwise agreed.
2. Client shall indemnify Contractor against third party claims regarding intellectual property rights.
Article 20: Expiry
Insofar as these General Terms and Conditions do not provide otherwise, claims and other powers of the Principal on whatever account against the Contractor will lapse in any case one year after the moment at which the Principal became aware or could reasonably have become aware of the existence of these rights and powers.
Article 21: Applicable law and choice of forum
1. All Agreements between the parties are exclusively governed by Dutch law. 2. The applicability of the Vienna Sales Convention is expressly excluded.
3. In the event of any disputes, the court that has jurisdiction in the district of the Contractor’s place of business shall have jurisdiction. Nevertheless, the Engaged Firm shall be entitled to submit the dispute to the court that is competent by law.
Algemene voorwaarden V.A. Fabrication B.V., V.A. Engineering B.V. en V.A. Projects B.V. 2023
