General Terms and Conditions Fleetshield B.V.
Article 1 General
As used in these General Terms and Conditions of Sale and Delivery, the following terms shall have the following meanings:
- Fleetshield: Fleetshield B.V., having its registered office and principal place of business in Vianen at Laanakkerweg 12 (C.O.C. number: 30039352). The work of Fleetshield consists of the lamination of various types of films, the adhesion of films and other materials and the trade, import and export of the above products and materials, the project-based application of film to protect bodywork (e.g., protection against graffiti on trains, trams, metros) and consultancy services relating to the aforementioned activities.
- Commissioning Party: Any legal entity or natural person, who has entered into or wishes to enter into an agreement with Fleetshield.
- GTC: The latest version of these General Terms and Conditions.
- In writing: By letter, email, fax or any other means of communication that can be equated with these, given the current state of technology, including email.
- Agreement: The agreements between Fleetshield and the Commissioning Party, regarding the purchase of goods or services by the Commissioning Party from Fleetshield, as well as all related (legal) acts.
- Complaints: All complaints made by the Commissioning Party about the quality and/or quantity of the goods delivered and/or the work.
Article 2 Scope
- These General Terms and Conditions apply to all legal relationships between Fleetshield and the Commissioning Party (regarding but not limited to, inter alia: purchases and sales, designs, advice, drawings, descriptions and all work in the broadest sense of the word related to the aforementioned).
- These General Terms and Conditions also apply to all agreements with Fleetshield for the provision of services for which third parties need to be engaged.
- The applicability of the General Terms and Conditions or other conditions of the Commissioning Party and/or another party are expressly precluded.
- If one or more provisions of these General Terms and Conditions are null and void, this shall not affect the validity of the remaining provisions. The Parties shall then consult to agree on new provisions. The purpose and purport of the original provision shall be observed as much as possible.
- In the event of any conflict between the contents of these General Terms and Conditions and the quotations, offers and/or the agreements concluded, the provisions of the quotation, offer and/or the Agreement shall prevail.
- Deviations from these General Terms and Conditions shall only be valid if they have been agreed in advance in writing by Fleetshield and the Commissioning Party. Such deviations shall not apply to any subsequent legal relationship between Fleetshield and the Commissioning Party.
- These General Terms and Conditions may be amended or supplemented at any time. The amended general terms and conditions shall subsequently also apply with regard to Agreements already entered into, subject to a period of one month after written notification of this amendment.
- Without in prior written or electronic consent from Fleetshield, the Commissioning Party is not permitted to transfer its rights and obligations under the Agreement to a third party.
- In case of delivery to a person acting in the capacity of their profession or business, by accepting the quotation, placing an order and/or commissioning assignments, the Commissioning Party waives its own general terms and conditions and accepts these General Terms and Conditions.
- These GTC shall at all times prevail over any General Terms and Conditions of the Commissioning Party. This shall also be the case if any terms and conditions of the Commissioning Party contain a similar prevention principle. Each agreement shall be entered into under the resolutive condition that these GTC are applicable.
Article 3 Offers and quotations
- Quotations shall be made in writing or electronically, except in exceptional and urgent cases.
- All quotations, pre-calculations, offers, price quotations and similar communications made by Fleetshield are entirely non-binding and can only be accepted without deviations.
- Issuance of a price quotation, estimation, pre-calculation or similar notification possibly indicated with “quotation”, does not oblige Fleetshield to enter into any agreement.
- Drawings, technical descriptions, designs, estimations, pre-calculations and calculations, made by Fleetshield or on its instructions, shall remain the property of Fleetshield. They are not allowed not be disclosed or shown to third parties for the purpose of obtaining a comparable quotation. Nor are they allowed to be copied or otherwise reproduced. If no assignment is commissioned, these documents must be returned to Fleetshield within 14 days of a request made by Fleetshield, at the expense of the Commissioning Party.
- If the quotation is not accepted, Fleetshield shall be entitled to charge the cost of the quotation to the party at whose request it was prepared.
- All quotations, pre-calculations, offers, price quotations and similar communications are non-binding and are valid for 30 days after the date of issue. In any event, Fleetshield shall have the right to revoke the offer within seven (7) days of receipt of the acceptance, in which case no agreement shall be deemed to have been entered into.
- If quotations offered by Fleetshield are (partly) based on information provided by the Commissioning Party, the Commissioning Party then vouches that all relevant information was provided to Fleetshield to the best of its knowledge and ability.
- Offers or quotations do not automatically apply to future assignments.
- Fleetshield shall not be bound by any quotation or offer if the Commissioning Party could reasonably have understood that the quotation, or any part thereof, contained an obvious clerical error.
Article 4 Agreement
- Once an order/assignment has been given to Fleetshield, an agreement between Fleetshield and the Client shall not be deemed legally valid until the order/assignment has been confirmed in writing by Fleetshield.
- In the event that the Commissioning Party has not (yet) signed the Agreement, the Agreement will also be deemed to have been entered into if it is apparent from the conduct of the Commissioning Party and/or Fleetshield it appears that the Agreement is in fact being carried out.
- The duration, rates and further conditions of the assignment will be agreed to (and laid down) in the offer and possibly in the Agreement.
- If an assignment is commissioned by two or more Commissioning Parties, they shall be jointly and severally bound and Fleetshield is entitled to fulfilment in respect of each of them for the whole.
- Any (further) agreements and/or amendments, as well as any verbal agreements and/or commitments made with Fleetshield’s subordinates shall not bind Fleetshield unless and insofar as Fleetshield has confirmed them to the Commissioning Party in writing.
- Anything provided/performed by Fleetshield in consultation with the Commissioning Party during the execution of the Agreement, whether or not agreed in writing, in addition to the work/services expressly set out in the Agreement, shall be deemed to be additional work.
Article 5 Prices
- Unless expressly stated otherwise, all quotations given by Fleetshield are subject to price changes.
- All prices are in Euros, excluding VAT, import duties, levies and duties imposed by the government, unless agreed otherwise.
- An amendment to the Agreement may change the price or execution period originally quoted, which the Commissioning Party will accept as a possibility. If, during the execution of the Agreement, it becomes necessary to amend or supplement the Agreement in order to properly execute it, the Parties shall consult with each other in a timely manner and then amend the Agreement. No consultation is required and the Commissioning Party will be deemed to have consented to an amendment to the Agreement insofar as the amendment deviates from no more than 10% of what is specified in the Agreement.
- Instead of agreeing to remuneration, the Commissioning Party has the right to limit, simplify or terminate the work. In this case, the amount payable by the Commissioning Party will be determined in accordance with the standards of reasonableness and fairness.
- Unless expressly agreed otherwise, the prices specified by Fleetshield or agreed with Fleetshield are exclusive of shipping costs, exclusive of packaging, exclusive of VAT and any other government levies and any other costs that are incurred within the framework of this Agreement (such as travel, accommodation costs).
- Prices quoted by Fleetshield or agreed with Fleetshield are based on the cost price at the time that a quotation was given or an order accepted by Fleetshield, Fleetshield is permitted to increase the sales price afterwards and pass it on to the Commissioning Party, if the price increase arises from an authorisation or obligation pursuant to laws or regulations or is caused by an increase in production costs, material costs, the price of raw materials, wages, import duties, taxes, changes in the exchange rates, insurance premiums, purchase prices, labour costs, currency fluctuations, or an increase in other cost price-determining factors. If Fleetshield increases the price within 3 months of the agreement being entered into, the Commissioning Party, who is a consumer, is in that case at liberty to dissolve the agreement.
- Any additional work performed by Fleetshield will be charged to the Commissioning Party separately from the price agreed between Fleetshield and the Commissioning Party for the assignment. The costs of additional work shall be calculated in the same manner as the price determined for the agreed work/services.
- If Fleetshield and the Commissioning Party have agreed on a fixed hourly rate, Fleetshield has the right to increase this hourly rate annually in accordance with the Services Producer Price Index (SPPI) of Statistics Netherlands (CBS). Such a price increase does not require that the Commissioning Party be notified.
- If and insofar as Fleetshield is confronted with (unforeseeable) cost-increasing factors during the fulfilment of an order, it shall be entitled to charge these to the Commissioning Party after notifying the Commissioning Party. If Fleetshield increases the price within 3 months of entering into the agreement, the Commissioning Party, who is a consumer, is entitled to dissolve the agreement.
Article 6 Payment
- Payment by the Commissioning Party must be made without any deductions, discounts or setoffs within thirty (30) days of the invoice date. Payment must be made in Euros by means of transfer to a bank account designated by Fleetshield, unless Fleetshield indicates otherwise in writing.
- In the event of non-payment or late payment by the Commissioning Party, the Commissioning Party shall immediately be in default after the expiry of the payment term. The Commissioning Party shall then immediately owe extrajudicial collection costs and statutory commercial interest.
- Unless expressly agreed otherwise in writing in the Assignment Agreement, the following payment obligation shall apply: 50% of the price is billed immediately after entering into the Agreement, a second sum amounting to 30% of the price is billed upon commencement of the work, and the remaining sum amounting to 20% of the price is billed after delivery as referred to in these General Terms and Conditions.
- All judicial and extrajudicial (collection) costs reasonably incurred by Fleetshield resulting from the Commissioning Party’s failure to fulfil its payment obligations, shall be borne by the Commissioning Party. The extrajudicial costs shall be calculated on the basis of what is customary in Dutch collection practice, i.e., currently the calculation method accordance with the Netherlands Extrajudicial Collection Costs Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
- Payments to Fleetshield shall first be applied to settle interest and collection costs already due and then to discharge of the longest outstanding invoice.
- If the delivery of goods or work is delayed at the request of the Commissioning Party, the agreed price shall be immediately due and payable by the Commissioning Party and Fleetshield shall be entitled to bill this immediately.
- In the event of an assignment that has been commissioned jointly, the Commissioning Parties are jointly and severally liable for payment of the invoiced amount regardless of the name that the invoice is addressed to.
- The right of the Commissioning Party to set off its claims against Fleetshield is expressly precluded. Any claims shall not suspend the Commissioning Party’s obligation to pay.
- The full claim for payment shall be immediately due and payable if:
- a payment term has been exceeded by a Commissioning Party acting in the capacity of a profession or business;
- the Commissioning Party is bankrupt, or has been granted a suspension of payment;
- the Commissioning Party as a company is dissolved or liquidated;
- the Commissioning Party, as natural person, is placed under guardianship or dies.
Article 7 Provision of information
- The Commissioning Party shall provide Fleetshield with all data and documents which Fleetshield deems necessary for the proper fulfilment of the assignment granted or which the Commissioning Party should reasonably understand to be necessary for the proper execution of the agreement, in a timely manner and in the form and manner requested by Fleetshield.
- The Commissioning Party is responsible for ensuring the accuracy, security and reliability of the data and documents provided to Fleetshield, even if they originate from third parties, insofar as the nature of the assignment does not dictate otherwise.
- If and insofar as the Commissioning Party so requests, the documents provided will be returned to the Commissioning Party.
- If Fleetshield does not receive the information necessary for the execution of the agreement, or does not receive it in time or in the correct form, Fleetshield shall be entitled to suspend the execution of the agreement and/or to charge the Commissioning Party the additional costs resulting from the delay in accordance with the usual rates.
- The required electricity, gas and water are for the expense of the Commissioning Party.
Article 8 Execution of the Agreement
- Fleetshield shall perform its services to the best of its ability in accordance with the requirements of good professional practice. All this in accordance with the latest state of technology and scientific knowledge at the time of entering into the agreement. This obligation is defined as a “best efforts” obligation.
- Fleetshield shall decide how the assignment granted is to be carried out and by whom. If and insofar as the proper execution of the agreement requires it, Fleetshield shall be entitled to have the agreement executed in whole or in part by third parties.
- If the Commissioning Party enters into an agreement directly with this third party, Fleetshield shall not be liable for any failings on the part of this third party.
- If Fleetshield carries out the assignment at the request of the Commissioning Party with the aid of or by processing materials or semi-finished products provided by the Commissioning Party, this shall be done entirely at the risk of the Commissioning Party. In particular, but expressly not limited to this, this relates to shelf life, adhesion, wear resistance, light and colour fastness of the materials or semi-finished products provided by the Commissioning Party.
- The Commissioning Party bears responsibility tin respect of Fleetshield for the correct and timely observance of all instructions, provisions and/or conditions issued by or on behalf of Fleetshield that are necessary for Fleetshield to execute the Agreement. In particular, the Client is obliged to make the item to be treated by Fleetshield available in the condition as indicated in the initial inspection report in writing provided by or on behalf of Fleetshield prior to the execution of the assignment.
- The Client is obliged to inform Fleetshield about the item to be treated so that Fleetshield can calculate the risks involved in executing the Agreement. If this obligation is not complied with, the Client is obliged to compensate Fleetshield for any damage suffered as a result and is also obliged to indemnify Fleetshield in the event Fleetshield is held to account by third parties.
- The Commissioning Party shall ensure at its own expense and risk that:
- Fleetshield’s staff, once they have arrived at the work site, can start and continue to carry out the work during normal working hours, and at the request of Fleetshield also outside normal working hours; and
- all necessary safety and precaution measures have been taken and are being maintained, as well as that all measures have been taken and enforced in order to comply with the applicable government regulations within the scope of the work.
- If work is carried out by Fleetshield or a third party brought in by Fleetshield as part of the execution of the Agreement at the location of the Commissioning Party or at another location designated by the Commissioning Party, the Commissioning Party shall, unless otherwise agreed in writing, ensure that the facilities reasonably required by Fleetshield are made available free of charge for the period during which the agreed work is carried out.
Article 9 Execution period
- If, within the duration of the Agreement, an execution period has been agreed for the completion of specific work, this is not a deadline, even if Fleetshield has considered it to be binding. If the execution period is exceeded, the Commissioning Party must give Fleetshield written notice of default. Fleetshield must be given a reasonable period of time to still fulfil the Agreement. A period of at least 6 weeks is considered a reasonable period.
- If the Commissioning Party owes an advance payment or if the Commissioning Party has to provide information necessary for the execution of the Agreement, the period within which the work must be completed, shall not commence until payment has been received in full or the information has been made available in full, respectively. For the rest, the period shall commence on the day Fleetshield receives that which, according to the Agreement, must be paid in advance by the Commissioning Party before commencing the work.
Article 10 Amendments to the Agreement
- If during the execution of the Agreement it appears that for its proper execution, it is necessary to change or add to the work being carried out, the Parties will amend the Agreement accordingly in a timely manner and in mutual consultation.
- If the Parties agree that the Agreement is to be amended or supplemented, and this may affect the time of completion of the execution of the Agreement, Fleetshield shall inform the Commissioning Party of this as soon as possible.
- If the amendment or a supplement to the Agreement will have financial and/or qualitative consequences, Fleetshield shall inform the Commissioning Party of this in advance.
- If a fixed price has been agreed upon, Fleetshield shall indicate the extent to which the amendment or addition to the Agreement will result in this fixed price being exceeded.
Article 11 Contract duration
- The Agreement shall be entered into for the period stated in the Agreement or for the duration of the project/ the assignment outlined in the Agreement.
- The Agreement entered into for a definite or indefinite period of time and not terminated by completion of the assignment/project ends, may be terminated by either party subject to notice period of three months.
- Fleetshield is entitled to suspend the fulfilment of its obligations or to dissolve the Agreement, without prejudice to its right to compensation, if:
- The Commissioning Party does not fulfil its obligations under the Agreement or does not fulfil them fully or properly;
- The Commissioning Party is declared bankrupt, has been granted a suspension of payment, whether provisional or not, or any other similar arrangement is made with respect to the other Party, or the other Party has otherwise lost the power to freely manage or freely dispose of all or any of its assets, whether or not that situation is irrevocable;
- The Commissioning Party has ceased to exist or has been dissolved;
- After the Agreement has been entered into, Fleetshield learns of circumstances that give good reason to suspect that the Commissioning Party will not fulfil its obligations;
- At the time of entering into the Agreement, the Commissioning Party was required to provide assurance for the fulfilment of its obligations under the Agreement and such assurance has not been provided or is insufficient;
- If due to the delay on the part of the Commissioning Party, Fleetshield can no longer be expected to fulfil the Agreement under the originally agreed conditions.
- Furthermore, Fleetshield is authorised to terminate the Agreement if circumstances arise of such a nature that fulfilment of the Agreement is impossible or if other circumstances arise of such a nature that Fleetshield cannot reasonably be expected to maintain the Agreement unchanged.
- If the assignment has been granted to Fleetshield with the intention that it should be carried out by a particular person and that person dies, the assignment will be carried out by another person associated with Fleetshield or, if no suitable person is available within Fleetshield at that time, by a third party in consultation with the Commissioning Party.
- In the event of premature termination of the Agreement, Fleetshield reserves the right to invoice the Commissioning Party for the work carried out up to that point, whereby the Commissioning Party will be provided with the preliminary results of the work carried out up to that point, subject to payment. If additional costs are incurred, these will be charged to the Commissioning Party. Fleetshield shall be entitled to reclaim goods not yet paid for, without prejudice to its right to compensation.
- If Fleetshield decides to suspend or dissolve the Agreement, Fleetshield shall not be held liable for any damage or costs incurred as a result of doing so.
- If the Agreement is terminated on the grounds that the Commissioning Party has failed to fulfil its obligations, the Commissioning Party shall compensate Fleetshield for all costs and damage incurred by Fleetshield directly or indirectly as a result.
- If the Agreement is terminated for reasons other than the Commissioning Party’s failure to fulfil its obligations, the Commissioning Party shall pay Fleetshield reasonable compensation for any loss or loss of profit incurred by Fleetshield.
- A legal claim against Fleetshield to hand over documents that Fleetshield has obtained in connection with the assignment lapses one year after the assignment has been completed.
Article 12 Additional or less work
- Settlement of additional and less work takes place in case of changes in the Agreement or in the terms and conditions of its execution.
- In the event that the Commissioning Party requests changes to the agreement or the conditions for its execution, Fleetshield may demand an increase in the price if it has informed the Client in good time of the necessity of the resulting price increase, except in cases where the Commissioning Party should have understood this necessity of its own accord.
- Amendments to the Agreement or to the terms of its execution shall – except in urgent circumstances – be agreed upon in writing or electronically. The absence of a written or electronic assignment shall not prejudice claims by Fleetshield and the Commissioning Party for the settlement of additional and/or less work. In the absence of a written assignment, proof of the amendment shall rest with the party making the claim.
Article 13 Intellectual and industrial property
- The Commissioning Party shall ensure that Fleetshield by carrying out the assignment with the information provided by the Commissioning Party including drawings, designs, models, sketches and images in the execution of the assignment, will not violate any statutory provision or protected rights of third parties, including in particular copyrights and/or (other) intellectual and industrial property rights, or the right with respect to tort. The Commissioning Party shall indemnify Fleetshield both in and out of court for all claims of third parties in this respect.
- All items, methods or processes created during the execution of the assignment shall be deemed to have been created entirely and exclusively according to the insights of Fleetshield. All industrial and intellectual property rights to or in connection with items, work methods or processes developed, designed and/or produced for the Commissioning Party, whether or not specifically for the execution of the assignment, and all drawings, texts, models, books, samples, tools, calculations, software and other documents and data carriers produced or used by Fleetshield for this purpose shall be the exclusive property of Fleetshield.
- The Commissioning Party, if required, is obliged to cooperate upon the first request of Fleetshield to transfer to Fleetshield the rights referred to in paragraph 2. Upon completion of the assignment, the Commissioning Party shall hand over to Fleetshield all information and items referred to in paragraph 2.
- Unless otherwise agreed, the working drawings, illustrations, designs, plans, design sketches, texts, photographs and other materials or (electronic) files as well as the technical information and ‘‘know-how’’ relating to them, created by Fleetshield as part of the assignment, or part of a previous quotation, shall remain the property of Fleetshield, irrespective of whether they have been made available to the Commissioning Party or to third parties, costs have been charged for them or improvements have been made after the sale, whether or not at the request of the Commissioning Party.
- The Commissioning Party is not allowed to copy the aforementioned in whole or in part and and is not allowed to disclose them to third parties, make them available to third parties, or otherwise divulge them, nor be used or made available by the Commissioning Party other than for the purpose for which they have been provided to the Commissioning Party.
- The Commissioning Party vouches that no information regarding the manufacturing or construction methods used by Fleetshield shall be used by, copied, shown or disclosed to third parties other than with its prior explicit consent, except to the extent strictly necessary for the work in question.
Article 14 Delivery, inspection and acceptance
- Unless otherwise agreed in writing, the place of delivery of the work and/or services performed by Fleetshield shall be the place where Fleetshield has primarily performed the work and/or services.
- If inspection by the Commissioning Party has been agreed, the work and/or services to be performed by Fleetshield shall be deemed to have been delivered when Fleetshield has indicated that the agreement has been fulfilled and that inspection can take place. If no inspection has been agreed, delivery shall be deemed to have taken place when Fleetshield has notified the Commissioning Party that the work has been completed. If only the delivery of goods has been agreed, the goods shall be deemed to have been delivered, unless otherwise agreed, when Fleetshield has made them available to the Commissioning Party at its premises or warehouse.
- If it is agreed that the goods to be delivered are to be transported, this shall be at the expense of the Commissioning Party, unless it has been agreed to transport these free of charge. The transport risk shall be borne by the Commissioning Party at all times.
- Immediately after delivery as referred to above, the Commissioning Party is under the obligation to carefully examine whether the services provided by Fleetshield have been carried out properly and in accordance with the Agreement.
- If an inspection has been agreed upon, Fleetshield and the Commissioning Party will jointly inspect the work performed and/or goods delivered by Fleetshield. A report of this inspection shall be drawn up, stating any complaints and/or defects found during the inspection. Fleetshield will indicate in this report which complaints and/or defects it accepts and which will be remedied and/or repaired as part of the execution of the Agreement. The parties will agree on a period of time within which Fleetshield must have fulfilled its obligations under the Agreement.
This time limit will never be considered as a final deadline.
- If an inspection has been agreed between the parties, the work performed and/or goods delivered by Fleetshield shall be deemed to have been accepted by the Commissioning Party after inspection, with the exception of any complaints and/or defects noted in the inspection report and accepted by Fleetshield.
- Complaints and/or defects remedied and/or repaired by Fleetshield shall be inspected and accepted in accordance with the provisions of this article.
- If no inspection has been agreed upon, the work, services and/or goods provided shall be deemed to have been accepted by the Commissioning Party if and insofar as no written complaint has been made by the Commissioning Party in a timely manner after delivery in accordance with the provisions of these General Terms and Conditions.
- In all cases, the services provided by Fleetshield shall be deemed by the parties to have been duly performed in accordance with the order and accepted by the Commissioning Party when the Commissioning Party has used, processed or treated the delivered goods or any part thereof, delivered them to third parties or had them used, processed or treated.
- After delivery, the goods delivered by Fleetshield shall be at the risk of the client, subject to the provisions of these General Terms and Conditions.
- The risk of loss, damage or impairment of the goods to be delivered is transferred to the Commissioning Party as soon as the goods are handed over to the carrier, even if Fleetshield transports the goods to be delivered with its own means of transportation.
Article 15 Retention of title
- Fleetshield shall retain ownership of the goods until the Commissioning Party has fulfilled its payment obligations to Fleetshield arising from these General Terms and Conditions or the agreement to which these General Terms and Conditions apply in full. For the duration of the retention of title, the Commissioning Party shall be deemed to be holding the goods for Fleetshield and shall store or keep them visibly as the property of Fleetshield. For the duration of the retention of title, the Commissioning Party shall not transfer ownership of the goods to third parties or encumber them with third party rights, insofar as the normal business operations of the Commissioning Party require the goods to be handed over.
- If the Commissioning Party has not fulfilled its payment obligation towards Fleetshield on the due date or if the Commissioning Party is in default with its payment obligation, Fleetshield shall be entitled to take back from the Commissioning Party all goods on which this retention of title is based. The Commissioning Party authorises Fleetshield in advance to have all goods in question returned at the expense of the Commissioning Party. The Commissioning Party also authorises Fleetshield or its appointed representative in advance to enter its premises, warehouses, factory halls, construction sites, etc. in order to enforce the provisions of this article.
Article 16 Default of the Commissioning Party
- Fleetshield shall at all times have the right to the provision of adequate security by the Commissioning Party.
- If the Commissioning Party fails to fulfil any of its obligations, Fleetshield shall be entitled to suspend the work until the Commissioning Party has fulfilled this obligation or to terminate the work in an unfinished state, provided that Fleetshield has previously informed the Commissioning Party in writing or electronically of these consequences of non-compliance. The provisions of the previous sentence shall not affect Fleetshield’s right to claim damages, costs and interest.
- If the Commissioning Party is declared bankrupt, or applies for a suspension of payment, or if a third party levies a lawful seizure against it, unless this seizure is lifted within one month, with or without the provision of security, Fleetshield shall be entitled to suspend the work without further notice, or to terminate the work in an uncompleted state.
- If, pursuant to this Article, there is a case of suspension or termination without completion, Fleetshield shall have the right to suspend or terminate the work without completing it without further notice.
Article 17 Cancellation
- If, after an agreement has been entered into, the Commissioning Party wishes to cancel it, the full order price (including VAT) shall be charged as a cancellation fee.
- If, upon cancellation, the Commissioning Party refuses to take delivery of the goods already purchased by Fleetshield, the Commissioning Party shall be obliged to pay Fleetshield all resulting costs.
Article 18 Advance payment bond
Fleetshield is at all times entitled to demand advance payment or a security bond before commencing or continuing with the provision of its services. If the Commissioning Party fails to make the required advance payment or provide the security bond, Fleetshield’s obligation under the Agreement shall lapse, without prejudice to Fleetshield’s right to compensation for damage, costs and interest from the Commissioning Party.
Article 19 Confidentiality and privacy
- Each Party undertakes to observe confidentiality towards third parties with regard to all confidential information and data originating from or relating to the other Party, insofar as such information and data have become known to the first Party within the scope of the assignment.
- Fleetshield has the right to publicise the existence of the agreements entered into between Fleetshield and the Commissioning Party in publications and interviews, etc.
- The Parties mutually undertake to act in accordance with the legislation concerning the protection of personal data. The Parties will act in accordance with the policy rules of the Dutch Data Protection Authority on the obligation to report data breaches (Beleidsregels meldplicht datalekken), the GDPR (AVG) and the GDPR Implementation Act.
- Fleetshield shall not be liable for any fines or claims if the Commissioning Party fails to comply with its obligations under the laws and regulations relating to data protection.
Article 20 Investigations and claims
- If an inspection has not been agreed upon, Fleetshield must be notified of any complaints regarding the work performed and/or the invoice amount within 7 days of the date of sending the documents or information that the Commissioning Party is making a complaint about, or within 7 days after the discovery of the deficiency, if the Commissioning Party is able to prove that it could not within reason have discovered the deficiency sooner, on penalty of forfeiture of the right to complain and any other rights of the Commissioning Party. Any notification must contain as detailed a description of the deficiency as possible to enable Fleetshield to respond appropriately. The Commissioning Party must give Fleetshield the opportunity to investigate a deficiency or complaint (or have it investigated).
- Complaints as referred to in the first paragraph, do not suspend the payment obligation of the Commissioning Party.
- If the complaint is not lodged in a timely manner, all rights of the Commissioning Party relating to the complaint shall lapse.
- If an inspection after delivery/completion has been agreed upon and this inspection/completion reveals defects and/or deficiencies, Fleetshield shall have the choice between altering the invoice amount, improving or redoing rejected work, and/or replacing the delivered goods or of the deficient or damaged part thereof. Fleetshield shall at no time owe the Commissioning Party any compensation. Any defects and/or deficiencies arising afterwards shall be at the expense and risk of the Commissioning Party.
- After the period referred to in Paragraph 1 has expired, the Commissioning Party shall no longer be entitled to repair, replacement or compensation.
- Deviations of minor importance do not alter the obligations of the Parties and do not give rise to a right of complaint, nor do they constitute grounds for, for example, a rejection, discount, termination of the Agreement or compensation. Deviations which, taking all circumstances into account, have no or only a minor influence on the (utility) value of the delivered goods, are always considered to be deviations of minor importance.
- A difference of 10% or less in the quantity delivered compared to the quantity agreed upon by Fleetshield, and if no total quantity has been agreed upon, compared to quantity the required for the Agreement, is not considered as a deviation from the delivered quantity and shall be deemed to be deviation of minor importance.
- Complaints can only be considered grounded if the complaint relate to goods which are still in the condition in which they were delivered by Fleetshield. Complaints will not be accepted if it appears that changes have been made to the goods delivered by Fleetshield, unless this has been done with Fleetshield’s written consent.
Article 21 Liability
- If an error is made because the Commissioning Party has provided Fleetshield with inaccurate or incomplete information, Fleetshield shall not be held liable for any resulting damage. The Commissioning Party shall indemnify Fleetshield against any claims by third parties for damage caused by the Client providing Fleetshield with inaccurate or incomplete information, unless the Client proves that the damage is not related to any culpable act or negligence on its part or is caused by wilful intent or gross negligence on the part of Fleetshield.
- Fleetshield shall only be liable for direct damage. It shall never be held liable for indirect damage, including, but not limited to: loss of business, loss of earnings and/or profit, costs incurred in carrying out the project, depreciation in the value of products, lost savings and damage caused by business stagnation.
- Fleetshield’s liability for any direct damage due to non-execution of an agreement for which Fleetshield is responsible shall only arise if the Commissioning Party gives Fleetshield immediate and proper notice of default in writing, setting a reasonable period of time to remedy the deficiency, and Fleetshield still fails to fulfil its obligations after this period of time has elapsed. The notice of default must contain as detailed a description as possible of the deficiency, so that Fleetshield is able to respond satisfactorily.
- If the Commissioning Party is able to prove that it has suffered damage as a result of an error on the part of Fleetshield which could have been avoided if Fleetshield had acted with due care, the liability shall at all times be limited to the amount paid out by Fleetshield’s insurer in such a case, plus the amount of Fleetshield’s deductible. In the event that the insurance does not pay, but Fleetshield’s liability is established, the liability shall always be limited to the invoice amount of the assignment that the liability relates to.
- If Fleetshield has been awarded an assignment from the Commissioning Party jointly with one or more other commissioning parties, each of the commissioning parties shall be liable for a deficiency in the (partial) work that they have carried out themselves.
- Fleetshield shall not be liable for any damage to goods of third parties which Fleetshield has in its possession for processing or safekeeping. for processing or safekeeping.
- Fleetshield shall be entitled to compensation from the Commissioning Party for any damage and costs resulting from the Commissioning Party’s refusal to accept delivery, including (but not limited to) the right to charge for the storage of the goods to be delivered on the basis of the storage space used (in square metres) on the basis of a square metre price of € 50 per month.
- Damage claims must be reported in writing to Fleetshield within 50 days of their occurrence, or at the time when the Commissioning Party discovered the damage or could have reasonably have discovered the damage, on penalty of Fleetshield forfeiting any claim for compensation.
- The Commissioning Party bears responsibility for the construction and working methods prescribed by it or on its behalf, and for the orders and instructions issued by it or on its behalf.
- Fleetshield shall never be liable for any adverse consequences to the Commissioning Party arising from any failure to meet any deadlines.
- The limitation of liability does not apply if there is a case of wilful intent and/or deliberate recklessness.
- The limitation of liability set out in these General Terms and Conditions do not apply if the damage is due to employees and/or non-employees that Fleetshield has engaged the services of.
- If the execution of the Agreement is temporarily impossible due to force majeure, Fleetshield shall be entitled to suspend the execution of the Agreement for as long as the hindrance lasts. Fleetshield will consult with the Commissioning Party to agree on a period during which the execution of the Agreement can still take place. If the execution of the Agreement has become permanently impossible due to force majeure, the Parties shall be entitled to dissolve the Agreement in whole or in part without Fleetshield being liable to pay any compensation.
- Fleetshield shall not be liable for any damage to the Client’s goods resulting from the unsuitability of those goods for the work to be carried out by Fleetshield on the instructions of the Client, if that unsuitability could not have become apparent to Fleetshield at the time of the initial inspection and the Client did not provide Fleetshield with information relevant to the execution of the Agreement when entering into the Agreement, or at the latest, when the initial inspection was carried out, did not provide Fleetshield with information relevant to the execution of the Agreement with respect to the properties and nature of those items, or the pre-treatments and surface treatments applied. In all cases, damage to glass through so-called thermal breakage is excluded from the liability of Fleetshield, unless explicitly agreed in writing by means of an initial inspection and unless a report by a glass expert approves the application of the glass film by the manufacturer.
Article 22 Force majeure
- Fleetshield is entitled to invoke force majeure if the fulfilment of the agreement is fully or partially, temporarily or otherwise, prevented or hindered by circumstances beyond its control, including but not limited to strikes, company embargoes, staff illness, operational disruptions, accidents, attachment orders, shortage of raw materials, semi-manufactured products, materials, auxiliary materials and/or energy, delayed or non-delivery by suppliers, transport disruptions, war, pandemics or their consequences, import and export restrictions and government measures.
- In the event of force majeure on the part of Fleetshield, its obligations shall be suspended. If the force majeure lasts longer than three months, both Fleetshield and the Commissioning Party are entitled to terminate the agreement for the part that cannot be fulfilled by means of a written declaration, without being liable for any compensation.
Article 23 Expiry period
Insofar as these General Terms and Conditions do not stipulate otherwise, any rights of claims and other authorisations of the Commissioning Party on any grounds whatsoever against Fleetshield in connection with the performance of work by Fleetshield shall lapse in any event after one year from the time when the Commissioning Party became aware or could reasonably be expected to have become aware of the existence of these rights and authorisations.
Article 24 Import and Export
- The Commissioning Party takes care of all required import and/or export permits and observe all relevant import and export regulations, so that Fleetshield is able to and allowed to fulfil the Agreement.
- The Commissioning Party shall inform Fleetshield of all import and/or export control regulations that are relevant to the delivery and/or existing prohibitions or permit requirements.
- The Commissioning Party hereby guarantees to comply with all relevant import and export control provisions and to obtain all necessary import or export permits.
- If the delivery is subject to a conditional approval, the Commissioning Party shall provide their full cooperation and make every effort to obtain the approval. The Commissioning Party shall provide Fleetshield with all information and documents required necessary for this purpose.
- If the Commissioning Party violates the aforementioned provisions and Fleetshield is held liable by a third party as a result, Fleetshield shall have the right to terminate the Agreement. The Commissioning Party shall compensate Fleetshield for any damage suffered due to the violation of the aforementioned provisions and/or the termination of the Agreement.
- If delivery by Fleetshield after entering into an agreement becomes impossible a result of an import or export restriction (e.g., due to an embargo or a tightening of an embargo), Fleetshield shall have the right to terminate the Agreement.
Article 25 Indemnity
- The Client shall indemnify Fleetshield against any claims by third parties, which suffer damage in connection with the fulfilment of the Agreement and the cause or consequences of which can be attributed to parties other than Fleetshield.
- If the Commissioning Party fails to take appropriate measures, Fleetshield shall be entitled to do so itself without notice of default. All costs and damage incurred by Fleetshield and third parties as a result shall be borne in full by the Commissioning Party.
Article 26 Printing proofs
- The Commissioning Party is obliged to carefully check any printing proofs that Fleetshield has provided for errors and omissions and to forward his or her opinion to Fleetshield within 14 days of these proofs being made available.
- Approval of the proofs by the Commissioning Party shall be deemed to be an acknowledgement that Fleetshield has carried out the work preceding these proofs and other associated work in accordance with the Agreement.
- If the Commissioning Party does not fulfil its obligation specified in the first paragraph, this shall be deemed to be an approval within the meaning of the second paragraph.
- Any proofs made at the Commissioning Party’s request shall be charged in addition to the agreed price, unless it has been expressly agreed that the costs for these proofs are included in the price.
Article 27 Cost-increasing circumstances
- Cost-increasing circumstances are circumstances:
- which are of such a nature that when the Agreement was concluded no account had to be taken of the likelihood that they would occur
- that cannot be attributed to Fleetshield and
- which increase the cost of the work
- Cost-increasing circumstances entitle Fleetshield to compensation of the resulting consequences.
- If Fleetshield is of the opinion that cost-increasing circumstances have occurred, it must inform the Client of this as soon as possible in writing or electronically. The parties will then consult at the earliest opportunity as to whether cost-increasing circumstances have occurred and, if so, to what extent the cost increase will be compensated in accordance with the standards of reasonableness and fairness.
Article 28 Suspension / dissolution / termination
- If and as soon as the Commissioning Party does not fulfil one or more of its obligations, does not fulfil them on time or does not fulfil them properly, is declared bankrupt, applies for a suspension of payment, proceeds to liquidate its business, its business otherwise ceases to operate, part of its assets are seized, or it becomes insolvent in any other way, Fleetshield is entitled to suspend its obligations and/or dissolve the Agreement without notice of default by means of a written declaration and with immediate effect and the Commissioning Party is obliged to pay all costs, damages and interest.
- Full or partial dissolution of an Agreement with Fleetshield on the grounds of late or improper fulfilment by Fleetshield, or due to an error by the Commissioning Party is precluded.
- Insofar as the Agreement concluded between the Commissioning Party and Fleetshield qualifies as a long-term agreement both parties have the right to terminate this Agreement with due observance of a notice period of three (3) months.
- If Fleetshield proceeds with suspension or dissolution of an Agreement, it is in no way obliged to compensate Fleetshield for any damage and costs incurred as a result thereof.
- If the Commissioning Party is responsible for the termination, Fleetshield shall be entitled to compensation of all direct and indirect damage suffered.
- Cancellation of a placed order is not possible. In that case, the Commissioning Party shall be obliged to pay the full invoice as well as all costs already incurred by Fleetshield.
Article 29 Applicable law; Competent Court
- These General Terms and Conditions and the Agreement to which they apply, or the Agreements arising from them, are governed by Dutch law.
- All disputes, including those which are only considered as such by one of the Parties, arising from or related to the Agreement to which these terms and conditions apply, or the relevant terms and conditions themselves and their interpretation or implementation, shall be adjudicated by the competent court in Utrecht, the Netherlands, insofar as statutory provisions permit this.