Section I: GENERAL PROVISIONS

1. Definitions

For the purposes of these General Terms and Conditions of Sale, Delivery and Payment (“Terms and Conditions”), the terms specified below are defined as follows:

• • RODANCO : the private company with limited liability having its registered office in Alkmaar, as well as its legal successors by universal or singular title and the other companies operating within the group.
  • Client: any natural or legal person that enters into a sale or any other agreement with RODANCO.
  • Products: any goods (to be) supplied or delivered in accordance with the Specifications of RODANCO under an Agreement by RODANCO, regardless of whether the Agreement exclusively comprises the supply or delivery of such goods or whether it (also) comprises the provision of Services;
  • Agreement: any agreement entered by and between RODANCO and the Client, including amendments or addenda thereto, as well as any (legal) acts in preparation and/or in execution of such agreement;
  • Services: any work (in whatever form and howsoever named, for example provision of services, contracts for work, outsourcing, lease, etc.) which RODANCO carries out for or for the benefit of the Client, whether or not in connection with the supply or delivery of Products;
  • Specifications: the description, product sheet, (safety) data sheet or drawing of the Products and/or Services to be delivered by RODANCO, which is stated or referred to in offers, quotations and Agreements. In the absence thereof, the description that is customary between the parties or, if there is none, the description that is commonly used in the industry;
  • Defect: any deviation of the Products or Services from the Specifications and any other improper functioning of the Products, or any Service that was not performed correctly in any other way.
  • Force majeure: any circumstance beyond the control of RODANCO, which affects the normal execution of the Agreement. This also includes strikes, staff illness, import, export and transit bans, government measures, failure by suppliers to supply, supply correctly, or supply on time and damage to the required production and/or transport equipment.

 

2. Applicability and void ability

The provisions in Section I of these Terms and Conditions apply to all offers, quotations and Agreements issued or entered into by RODANCO. The provisions in Section II of these Terms and Conditions apply specifically to offers, quotations and Agreements issued or entered into by RODANCO for the sale and delivery of Products. The provisions in Section III of these Terms and Conditions apply specifically to offers, quotations and Agreements issued or entered into by RODANCO for all Services to be provided by RODANCO. Where a provision in a particular Section is inconsistent with a provision in another Section, the provision in the Section which applies specifically to the respective offer, quotation or Agreement shall prevail.

Unless otherwise agreed in writing, all offers, quotations and Agreements issued or entered into by RODANCO shall be exclusively governed by these Terms and Conditions. These Terms and Conditions shall supersede the terms and conditions of purchase of the Client. The applicability of any general terms and conditions of the Client is hereby explicitly rejected by RODANCO.

The invalidity or inability to enforce any provision of these Terms and Conditions shall not affect the validity or enforceability of the other provisions. The parties shall replace any invalid or unenforceable provision by a valid or enforceable provision, the legal effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.

 

3. Amendments and addenda

Amendments and addenda to any provision in an Agreement and/or these Terms and Conditions may only be agreed in writing.

Variations from and addenda to these Terms and Conditions only apply to the respective Agreement.

 

4. Offers, quotations and advice

Offers and quotations made by RODANCO are not binding upon RODANCO, unless expressly agreed otherwise in writing. Where an offer contains an acceptance period, this means that the offer will expire after the relevant period.

The brochures, price lists and other information provided by RODANCO are merely informal in nature and thus not binding upon RODANCO. The Specifications provided by RODANCO in the documents sent by RODANCO are characteristic of the Products and/or Services to be delivered.

Any advice by RODANCO shall be provided to the best of its knowledge. Data and information on the suitability and use of a Product and/or Service do not relieve the Client from conducting inspections and tests.

If RODANCO makes or issues an offer to deliver a Product and/or Service to the specifications of the Client, the Client must provide in accordance with the requirements of RODANCO a comprehensive and detailed statement of specifications in writing to RODANCO prior to or when entering into the Agreement.

RODANCO reserves the right to refuse orders and/or contracts, without stating the reasons for its decision.

 

5. Formation of the Agreement

Agreements, including amendments and addenda thereto, will enter into effect if and insofar as RODANCO has provided written confirmation thereof, or RODANCO has commenced the execution of the agreement.

If, in derogation from Article 4.1 of these Terms and Conditions, RODANCO has issued a binding quotation, the Agreement will come into effect on the day that the written acceptance is received.

 

6. Joint and several liability

If the Agreement is entered into with two or more Clients, each Client will be jointly and severally liable for compliance therewith.

 

7. Prices

Unless otherwise agreed in writing, all prices are quoted in Euros, excluding VAT, insurance, taxes and other charges and are based on delivery Ex Works (as referred to in the Incoterms 2010). The prices for leasing of equipment and posting of staff are quoted per working hour.

Quotations are always based on the prices and circumstances applicable at the time of the offer. If, after concluding the Agreement, one or more cost price factors (including but not limited to wages, taxes, premiums, purchase prices, raw material prices, foreign exchange rates, etc.) has increased, RODANCO is entitled to pass this increase on to the Client.

 

8. Engaging third parties

 If and insofar as this is required for the proper execution of the Agreement, RODANCO is, at its sole discretion, entitled to have work and/or deliveries carried out by third parties.

 

9. Execution on time

The stated delivery times are always estimated times and may never be regarded as a final deadline, unless expressly agreed otherwise in writing. In the event of a delay in supply or delivery, RODANCO will be given written notice of default and RODANCO must be given a reasonable period in which to fulfil its obligations. A period of four (4) weeks is deemed to be a reasonable period of time.

 

10. Force majeure

If a Force majeure occurs, RODANCO is entitled to delay the supply or delivery for as long as the Force majeure  If a temporary inability to comply lasts longer than eight (8) weeks after the original delivery time, parties are entitled to dissolve the Agreement in writing. If RODANCO is permanently unable to comply as a result of force majeure, parties are also entitled to dissolve the Agreement.

In the case of a dissolution pursuant to the provisions in this Article 10, RODANCO is entitled to claim payment for the part of the Agreement that was executed before the Force majeure took place. In this case, RODANCO is not liable to pay the Client any damages.

 

11. Liability

The liability of RODANCO is limited to the provisions in Article 11 of these Terms and Conditions. Further liability of RODANCO is excluded, unless the damage is the result of an intentional act or gross negligence on the part of the managing staff of RODANCO. Any further liability is excluded.

If RODANCO is also unable to invoke the provisions of paragraph 1 of this Article, RODANCO shall only be liable for any damage that is directly and exclusively the result of a circumstance that can be attributed to RODANCO. RODANCO shall not be liable for indirect damage, including – but not exclusively – loss of profits, consequential loss and/or trading loss. RODANCO shall not be liable for any mistakes or failures on the part of any third party engaged by RODANCO, nor for any wilful misconduct or gross negligence on their part.

If RODANCO cannot invoke the liability exclusions referred to in paragraphs 1 and 2 of this Article, then the liability of RODANCO will be limited to the invoice amount of the Products delivered by RODANCO or of the work carried out by RODANCO, for which RODANCO is liable to pay compensation. RODANCO shall never be liable for an amount greater than the amount for which RODANCO has taken out a liability insurance. At the request of the Client, RODANCO will provide proof of insurance to the Client.

 

12. Payment, interest, costs and penalties

Unless expressly agreed otherwise in writing, payments shall be made in Euros within fourteen (14) days of the invoice date. The Client shall not be entitled to suspend and/or offset any payment.

If the Client believes that the invoices are incorrect, it shall notify RODANCO of this in writing within eight (8) days of the invoice date. If this term is exceeded, the Client will be deemed to have accepted the invoices. Unless the inaccuracy of the invoices is recognised in writing within the payment term, the Client must pay the invoice amounts within the agreed payment term.

If RODANCO’s invoice/claim is not paid on time, RODANCO is entitled to increase the amount by 10% interest per year, unless the statutory trade interest ex Article 6:119a of the Dutch Civil Code is higher in the relevant period, in which case the latter interest is due.

Without prejudice to the interest due, the Client will be liable to forfeit a contractual penalty of fifteen percent (15%) over the due amount, with a minimum of EUR 5,000.00 if it fails to fulfil any obligation to RODANCO.

Where these Terms and Conditions – or otherwise an offer, quotation and/or Agreement – include a clause that requires the Client to pay a penalty to RODANCO, this penalty shall expressly not be in lieu of the additional and/or alternative damages that the Client must pay to RODANCO under the law (as referred to in Article 6:92 paragraph 2 of the Civil Code).

 

13. Cancellation

 The Client may only cancel an Agreement entered into with RODANCO following written agreement by RODANCO. If RODANCO agrees to the cancellation, the Client is immediately liable to pay a contractual penalty of at least 25% of the agreed price (including VAT) to RODANCO, without prejudice to the right of RODANCO to demand full compensation.

Where RODANCO is reasonably required to prepare a Task Risk Assessment (hereinafter: “TRA”) on location for the execution of an Agreement, RODANCO is unilaterally entitled to cancel the Agreement if, in the opinion of RODANCO, the TRA shows that the execution of the Agreement is not possible, at least not under modified conditions. In this case, RODANCO is not liable to pay the Client any damages.

 

14. Dissolution and suspension

In cases where the Client:

1. is declared bankrupt or applies for a moratorium on payment;
2. goes on strike or transfers its business or a substantial part thereof, including the transfer of its business in a prospective or existing partnership, or changes its business goals; or
3. is in default with regard to compliance with the agreement entered into with RODANCO; all claims and invoices shall become immediately due and payable and RODANCO shall have the authority to suspend (in whole or in part) its obligations until the Client has provided security for compliance with its obligations or dissolves the agreement, whereby the Client is liable for all damages suffered by RODANCO now and in the future.

During the execution of the Agreement, RODANCO is entitled to suspend compliance with its obligations until the Client has provided security at the request and to the satisfaction of RODANCO for compliance with all its obligations arising from the Agreement. Refusal by the Client to provide the required security entitles RODANCO to dissolve the Agreement, notwithstanding the right of RODANCO to demand full compensation of losses, costs and interest.

 

15. Retention of title / Pledge

All Products delivered by RODANCO shall remain the property of RODANCO until the Client has paid the purchase price and any other claims as referred to in Article 3:92 paragraph 2 of the Civil Code.

The Client is furthermore required to create a (undisclosed) pledge at the request of RODANCO, as referred to in Article 3:239 of the Civil Code, on any claims from third parties resulting from the sale of the Products by RODANCO.

 

16. Confidentiality

The Client and its staff shall maintain strict confidentiality with respect to any information regarding the Products, Services, Specifications and the business of RODANCO in the broadest sense of the word, which they may obtain in connection with the Agreement or its execution, such including the nature, reason and the result of the work carried out by RODANCO. Client is responsible for compliance by its staff with this confidentiality obligation.

If the Client fails to comply in whole or in part with the obligation referred to in paragraph 1 of this Article, it shall, by virtue of that fact, incur to RODANCO an immediately due and payable penalty of EUR 100,000.00, which is not open to mitigation, without prejudice to the right of RODANCO to demand full compensation.

 

17. Applicable law and disputes

 

The legal relationship between RODANCO and the Client shall be governed by and construed in accordance with the laws of the Netherlands. If and insofar as the legal relationship relates to the sale and delivery of Products, the legal relationship shall be governed by the Vienna Sales Convention (CISG), regardless of whether the Client is established in a Member State that is party to the Vienna Sales Convention (CISG). Matters not explicitly provided for in the Vienna Sales Convention (CISG) shall in that case also be governed by the laws of the Netherlands.

The District Court in Amsterdam (Netherlands) has exclusive jurisdiction to hear disputes between the parties.

The provision in paragraph 2 of this Article does not affect RODANCO’s right to submit the dispute to the Civil Court which has jurisdiction according to the law or convention.

 

Section II: GENERAL PROVISIONS FOR SALE AND DELIVERY OF PRODUCTS

 

18. Product properties and warranty

Unless agreed otherwise, the Product properties are drawn exclusively from the Specifications. The properties included in the Specifications are not and shall not in any way be regarded as guaranteed properties. Identification and registration of a Product under the European Chemicals Regulation (REACH) offers no conclusive evidence regarding the agreed Specifications of a Product, nor regarding the use allocated under the Agreement.

 

19. Delivery

Unless otherwise agreed, all deliveries are Ex Works (as referred to in the Incoterms 2010).

If the Products are not collected by the Client after expiry of the delivery period,
the Products (if the storage facilities of RODANCO permit) will be stored by RODANCO, whereby the costs and risks thereof will be borne by the Client. In the event of failure to collect the Products on time, RODANCO is entitled to dissolve the Agreement after a period of fourteen (14) days after the expiry of the delivery period, without prejudice to RODANCO’s right to damages and without prejudice to RODANCO’s right to sell all the Products to a third party.

RODANCO has the right to deliver up to 10% more or less than the quantity ordered by the Client, provided that the Client pays the actual quantity delivered. A bill of lading, consignment note, weight slip or similar document issued to the Client upon delivery by RODANCO is deemed to reflect the correct quantity delivered.

If RODANCO has provided loadboards, containers and the like for the purpose of the packaging and transport or has outsourced the work to a third party, the Client is required to return these products at its own expense to the address provided by RODANCO, unless said items are disposable packaging products. Failure to do so will entitle RODANCO to charge the Client for the costs of these products.

 

20. Complaints

 The Client accepts the Product with all visible and invisible Defects, except for the provisions of this Article 20.

The Client undertakes to inspect the Product immediately on delivery. If parties have agreed on a different delivery method in writing (other than Ex Works as referred to in the Incoterms 2010), the Client undertakes to inspect the Products at RODANCO prior to transport. RODANCO will, insofar as reasonable, cooperate with the Client or an independent third party designated by the Client, after consultation with RODANCO. If the Client does not fulfil this obligation, the Product will be considered to have no Defects at the time of delivery.

If the Product shows visible Defects or the sizes, weights and/or quantities do not correspond with the specifications stated in the Agreement between the Client and RODANCO, the Client, at the risk of forfeiting all rights , must inform RODANCO and report the defects on the shipping documents, the delivery note or consignment note within three (3) working days. The shipping document is deemed to provide the correct description and list of the delivered goods.

Complaints regarding quality must be lodged with RODANCO within eight (8) days after receipt of the Products, failing which the Client shall be deemed to have accepted the Products. No complaints may be lodged with respect to Products that have been processed by the Client or by third parties, unless the dDefects first appear during processing.

If the complaints are upheld by RODANCO, RODANCO shall in its sole discretion either (i) arrange for the Products to be repaired; (ii) arrange for replacement of the Products or parts thereof; or (iii) pay the invoice value of the Products.

 

21. Liability 

The liability of RODANCO vis-à-vis the Client for the delivery of Products is limited to the provisions set forth in Article 11 of these Terms and Conditions.

The Client indemnifies RODANCO from any third-party claims if and insofar as such claims are in connection with a Product delivered by RODANCO to the Client. The Client will in any case indemnify RODANCO for Products produced to specifications of the Client.

If a third party holds the Client Customer liable for any product from RODANCO, the Client shall, at risk of forfeiting all on pain of loss of rights, notify RODANCO of this immediately, but no later than within three (3) working days.

 

22. Cancellation

Cancellation by the Client of an Agreement entered into with RODANCO for Products produced by order of the Client and/or to the specifications of the Client is not possible.

 

Section III: GENERAL PROVISIONS FOR THE PROVISION OF SERVICES

 

23. Execution

RODANCO shall make every effort to deliver the Services with care. Services delivered by RODANCO are provided explicitly for the Client and not for third parties involved with the Client.

The Client shall provide any such data and information as may be required by RODANCO. In addition, the Client shall provide to RODANCO all other facts and circumstances that may be necessary for the proper execution of the Agreement.

The Service is delivered on the basis of information, calculations and documents provided by or on behalf of the Client. The Client is at all times and in all circumstances responsible for the accuracy and completeness of the information, calculations and documents it supplies. RODANCO does not accept any responsibility for the accuracy and/or completeness of the data, calculations and documents provided by the Client, nor for any advice given in consequence. Client indemnifies RODANCO from all claims in this regard.

If certain quantities, types, sizes and/or location or method of execution are not specified accurately or completely in the data, calculations and documents provided by or on behalf of the Client, they are not or cannot be deemed to be (fully) part of the Agreement, including but not limited to:

1. preparatory work;
2. transport;
3. the quantity to be used or processed;
4. removal, use, treatment or disposal of (hazardous) substances or goods;
5. installation of auxiliary structures and facilities or protective measures;
6. data concerning (customs and local) regulations, including but not limited to laws and regulations relevant to the TRA.

The period in which the Service is to be delivered, i.e. the work to be performed, is based on the applicable circumstances in effect at the time of the conclusion of the Agreement and which are known to RODANCO. If a delay beyond the control of RODANCO occurs as a result of change in working conditions or because the materials ordered on time are not delivered on time for execution of the work in time, the delivery time will be extended as necessary.

Without prejudice to the provisions elsewhere in these Terms and Conditions in respect of extension of the delivery period, the delivery period will be extended by the duration of the delay arising on the part of RODANCO as a result of the Client’s failure to fulfil any obligation ensuing from the Agreement or failure to provide the assistance required of the Client in respect of satisfying the terms of the Agreement.

Furthermore, all quotations and offers are based on the assumption that the Services can and will be delivered during the normal business hours of RODANCO and under normal circumstances and without the requirement that a project (or part thereof) or an object (or part thereof) will be executed in phases.

Except for gross negligence and/or wilful intent on the part of the executive staff of RODANCO, failure to meet the delivery date will not entitle the Client to dissolve the Agreement, either in whole or in part. Failure to meet the delivery date, for whatever reason, does not give the Client the right to perform or cause activities to be performed for the execution of the Agreement.

 

24. Obligations of the Client

To the extent necessary, the Client shall – at its own expense and risk – ensure that RODANCO will have the following on time:

1. the data and approvals, such as permits, exemptions and decisions, required for the delivery of the Service;
2. access to the building, premises or water in which or on which the Service is to be delivered;
3. sufficient opportunity for supply, storage and/or disposal of Products, equipment, materials and tools;
4. power outlets for machines, lighting, heating, gas, compressed air, nitrogen and water;

Client is required to prepare and maintain the site where the Service is to be delivered in such a state that the Service can be delivered. Preparation and maintenance shall take place according to the requirements of RODANCO. Client shall provide all cooperation necessary in helping RODANCO conduct the TRA referred to in Article 13.2 of these Terms and Conditions.

If and insofar as activities are involved in the Service, which due to circumstances beyond RODANCO’s control cannot be executed within the framework of the respective Service, the Client shall pay the entire amount agreed to RODANCO, without any discounts or offsets and RODANCO shall not be liable for any damages.

 

25. On-time execution and postponement of delivery

The commencement date of the delivery of the Service will be deemed to be the date specified in the Agreement. If no such date has been agreed by the parties, then the commencement date shall be the date on which RODANCO has commenced with its work.

RODANCO will commence with delivery of the Service when it has received all the data necessary for that purpose (including the required permits, approvals, decisions and/or allocations by the government).

The period within which the Service must be delivered will be stated in the Agreement either as a number of workable business days or as a number of calendar days – weeks or – months, or by specifying a specific day.

If the period within which the Service will be delivered is stated in workable business days, business day shall then mean a calendar day other than a Saturday or Sunday, unless it falls on a general holiday or a holiday, vacation day or other non-individual day off recognised by the government or by or under a collective agreement. Business days or partial business days are considered unworkable business days on which the majority of workers or machinery cannot work for at least five hours or at least two hours due to Force majeure.

If delivery of the Service should take place on a day that is not described as a business day in the fourth paragraph, the following business day applies as the agreed date of delivery.

RODANCO is entitled to an extension of the period within which the Service will be delivered if RODANCO cannot be expected to deliver the Service within the agreed period due to Force majeure, or circumstances attributable to the Client, or due to amendments to the Agreement or to the Terms and Conditions in respect of delivery.

Failure to meet the time limit within which the Service will be delivered will not require RODANCO to pay any damages to the Client.

If the commencement or progress of the Service is delayed by factors for which the Client is responsible, the damages and costs resulting therefrom for RODANCO must be reimbursed by the Client.

 

26. Suspension of the Work and termination of the Work in an incomplete state

The Client is entitled to suspend the delivery of the Service in whole or in part.

Measures, which RODANCO must take as a result of suspension, are charged as upward contract variation. Damages suffered by RODANCO as a result of suspension will be reimbursed by the Client. Any damages arising during suspension shall be borne by the Client.

If a suspension lasts longer than fourteen (14) days, RODANCO shall be entitled to proportional payment for the portion of the Service delivered.

If the suspension lasts longer than one (1) month, then RODANCO shall be entitled to terminate the Service in an incomplete state. In that case, RODANCO shall be entitled to full payment of the agreed price.

 

27. Impossibility of delivery

If the delivery of a Service is impossible because the object is destroyed or lost without this being attributable to RODANCO, or due to any other reason beyond the control of RODANCO, RODANCO shall be entitled to full payment of the agreed price, plus the costs it incurs as a result of the non completion.

 

28. Amendment to the Agreement; contract variations

If during delivery of the Service, modifications or additions to the Services turn out to be necessary for the proper delivery of the Service, RODANCO shall be entitled to amend the Agreement as necessary. RODANCO shall notify the the Client of this modification as early on as possible.

If RODANCO modifies the Agreement according to the preceding paragraph, then RODANCO shall be entitled to execute this after approval has been given by the individual authorised to so by the Client and the Client has agreed to the price specified for the modification. Failure to execute the amended Agreement or failure to do so immediately will not result in a breach of contract by RODANCO and provides no grounds for the Client to terminate, cancel or dissolve the Agreement.

In addition to the provisions in paragraph 1 of this Article, RODANCO is, at its sole discretion, also entitled to dissolve the Agreement if the proper delivery of the Service proves to be impossible without modifications or additions. In that case, the Client is liable to pay for the work RODANCO has performed up to that date.

 

29. Delivery, inspection, complaints

The Client shall inspect the Service delivered immediately upon completion. The Client shall notify RODANCO in writing as to whether the Service delivered has been approved or not within five (5) days of inspection. If approval is withheld, the Client shall state the Defects that are the reason for withholding the approval. If the Service is approved, then the date of approval shall be deemed the date on which the relevant notice was sent to RODANCO.

If a written notice of approval or rejection of the Service is not sent to RODANCO within five (5) days of the inspection, the Service will be deemed to have been approved. The Service will also be deemed to have been approved if and when it is deployed.

Minor Defects which can be remedied within a period of six (6) months of the inspection do not entitle the Client to withhold approval of the Service, provided that they do not stand in the way of deployment. RODANCO will repair the Defects specified in this paragraph as soon as possible.

 

30. Liability

The liability of RODANCO vis-à-vis the Client for the delivery of Services is limited to the provisions set forth in Article 11 of these Terms and Conditions.