Article 1 Definitions
In these Sales Conditions is understood under:
- SOFFOS: Survey Agency SOFFOS, with its registered office in Rijen.
- Principal: The entity signing an agreement with SOFFOS to conduct activities and/or supply products and/or services, in the broadest sense of the word.
- Under ‘in writing’ should be understood: by letter, by fax or along any electronic way.
Article 2 Applicability
- These general conditions are applicable on all SOFFOS offers and on all agreements between SOFFOS and the Principal.
- Additional and/or deviating conditions – which also includes purchasing conditions – of the Principal do not form part of the agreement between SOFFOS and the Principal and therefore do not bind SOFFOS, unless SOFFOS has accepted these conditions specifically and in writing.
- With possible contradictions in these general conditions with that of the Principal, the SOFFOS general conditions shall prevail, unless SOFFOS confirmed with the principal in writing that his conditions shall prevail.
- Should these general conditions be amended in the interim, the altered version thereof forms part of every agreement between SOFFOS and the Principal, coming into force from the implementation date of the change.
- The current conditions are also applicable on all agreements with SOFFOS for the execution of which external parties need to be involved.
Article 3 Quotation and validation of the agreement
- All SOFFOS tenders and quotations are entirely obligation free and valid for thirty days, unless determined differently specifically, in writing.
- The Agreement between SOFFOS and the Principal becomes valid through the acceptance of the SOFFOS tender or quotation, in writing. The Principal accepts these general conditions through his written issuing of the order.
- If one or more of the specifications in these general conditions are invalid or needs to be overruled, the other specifications in these general conditions remain completely in force. SOFFOS and the Principal shall then negotiate in order to agree on new specifications in replacement of the invalid or overruled specifications, whereby if and for as far as possible the purpose and the range of the original stipulation shall be taken into consideration.
- The prices in the said offers and tenders are exclusive of VAT and other government imposed levies, as well as possible expenses to be incurred in the ambit of the agreement, unless indicated otherwise.
Article 4 Execution of the agreement
- SOFFOS shall execute the agreement to its best insight and abilities and according to the requirements of good craftsmanship. This shall be pursuant to the state of the art at that moment.
- If and for as far as required for the proper execution of the agreement, SOFFOS shall be entitled to have certain activities performed by external parties.
- The Principal shall take care that all details indicated by SOFFOS to be necessary or that the principal should reasonably understand that this is necessary for the execution of the agreement, be issued to SOFFOS on time. If the details necessary for the execution of the agreement is issued late to SOFFOS, SOFFOS is entitled to suspend the execution of the agreement and / or charge the Principal according to the usual tariffs for the extra expenses resulting from the delay.
- SOFFOS is not responsible for any loss, no matter what nature, if SOFFOS acted based on the incorrect and / or incomplete details issued by the principal, unless this incorrect or incompleteness should have been known by SOFFOS.
- If it was agreed that the agreement shall be executed in phases, SOFFOS may suspend the execution of the components belonging to a follow-up phase until the Principal has approved the results of the previous phase in writing.
- If activities are performed by SOFFOS or external parties appointed by SOFFOS at the Principal’s location or a location indicated by the Principal in the ambit of the contract, the Principal shall take care of the facilities required in reasonability by die employees, free of charge.
- The Principal indemnifies SOFFOS against possible claims by external parties who may suffer a loss in view of the execution of the agreement and which may be accountable to the Principal.
Article 5 Changes to the Agreement
- If it appears during the execution of the agreement that it is necessary for the proper execution to change the activities to be rendered or to add to these, parties shall adjust the agreement accordingly on time and in mutual discussion.
- If parties have agreed that the agreement shall be amended or supplemented, the time of completion or the execution therefore may be influenced. SOFFOS shall inform the Principal in this regard as soon as possible.
- If the change or addition to the agreement has financial and / or quality consequences, SOFFOS shall inform the Principal in this regard in advance.
- If a fixed tender amount was agreed to, SOFFOS shall indicate the extent to which the change or addition to the agreement shall constitute an exception of this tender amount.
- In deviation of section 3, SOFFOS shall not be able to charge any excess costs if the change or addition was a consequence of circumstances accountable to SOFFOS.
Article 6 Execution period
- The agreement between SOFFOS and the Principal is entered into for the duration of the period of the contract indicated in the tender or quotation.
- With the exception of the execution period other than as intended in article 5, the Principal should inform SOFFOS in writing.
Article 7 Compensation for expenses
- Parties could agree to a fixed tender amount at the start of the agreement.
- If a fixed tender amount wasn’t agreed to, a fee shall be established pursuant to actual hours spent. The fee is calculated according to SOFFOS’s usual hourly rates, applicable for the period during which the activities are performed, unless a different hourly rate was agreed to.
- The fee and any possible estimates are VAT exclusive.
- The expenses due shall be charged periodically depending on the duration of the contract.
- If SOFFOS agrees on a tender amount or fixed fee with the Principal, SOFFOS is nevertheless entitled to increase the tender amount or this fee.
- SOFFOS is also entitled to charge price increases if fees, for instance wages and salaries, have increased between the moment of offer and supply.
- SOFFOS may also increase the tender amount or the fee when it appears during the execution of the activities that the original agreed to or expected quantity of work was estimated incorrectly to such an extent when the agreement was signed, and this can not be accountable to SOFFOS, that it may not in any reasonability be expected of SOFFOS to carry out the agreed to activities at the originally agreed to tender amount or fee. In that case, SOFFOS shall inform the Principal of the planned increase of the fee or tariff. SOFFOS shall also mention the extent of and the date on which the increase will commence.
Article 8 Payments
- Payment should be made within 14 days from date of invoice, in the way indicated by SOFFOS in the currency in which it was declared. Objections against the billing amount shall not suspend the obligation to pay.
- If the Principal does not make payment within the period of 14 days, the Principal shall be considered to legally be in breach. The Principal shall then have to pay interest at 1% per month, unless the statutory interest lies higher in which case the statutory interest shall apply. The interest due on the claimable amount shall be calculated from the moment that the Principal comes in breach until compliance with the full amount.
- In the event of liquidation, bankruptcy, seizure or suspension of payment of the principal, SOFFOS’ claims on the principal becomes claimable immediately.
- SOFFOS is entitled to firstly appropriate the payments made by the Principal towards a reduction of the expenses, then in reduction of interest and finally in reduction of the principal amount and the current interest.
- SOFFOS may, without therefore being in breach, refuse an offer towards payment if the principal allocates another sequence for the deductions.
- SOFFOS may refuse a full settlement of the principal amount if this does not also cover the arrears and current interest as well as the expenses.
Article 9 Retention of ownership
- All goods supplied by SOFFOS, including possible designs, drawings, software, (electronic) files, etc., remain SOFFOS’ property until the principal has complied with all consecutive commitments based on all agreements entered into with SOFFOS.
- The Principal is not entitled to sell the materials falling under the retention of ownership, or to pledge this or attach it in any other way.
- If external parties should seize the materials supplied under retention of ownership or proceed to attach these, the Principal shall inform SOFFOS thereof as soon as reasonably possible.
- The Principal shall insure and keep the goods supplied under retention of ownership insured against fire, explosion and water damage as well as against theft and the policy of this insurance shall be submitted for inspection upon first request.
- Goods supplied by SOFFOS that fall under retention of ownership by virtue of the specifications under 1 of this article, may only be sold in the ambit of normal commercial activities and never be used as a means of payment.
- In case SOFFOS wants to enforce its rights of ownership indicated in this article, the Principal now already gives his unconditional and irrevocable consent to SOFFOS or any external parties appointed by SOFFOS to enter all the locations where SOFFOS’ property may be found, and to take these materials back with them.
Article 10 Collection fees
- If the Principal defaults in making payment or no longer complies with one or more of its commitments, all reasonable expenses to acquire an extrajudicial settlement shall become accountable to the Principal. If the Principal remains in default to comply with the timely payment of any money, he shall incur an immediately claimable fine of 15% on the still payable amount. This to a minimum of € 50.00.
- If the Principal defaults in payment or no longer complies with one or more of its commitments, all reasonable expenses to acquire an extrajudicial settlement shall become accountable to the Principal. The Principal is in any case liable to pay collection fees in case of any money claim. The collection fees are calculated according to the general recognized methods used in collection cases under Dutch jurisdiction.
- If SOFFOS incurred more expenses, which were reasonably necessary, this will also be eligible for compensation.
- The possible reasonable incurred legal and execution costs are also accountable to the Principal.
- The Principal must pay the interest on the incurred collection fees.
Article 11 Survey, complaints
- Complaints concerning the activities that were carried out must be reported to SOFFOS in writing by the principal within 8 days after discovery, yet at the latest within 14 days after completion of the relevant activities. The default notice should contain a description of the shortcoming in as much detail as possible, to enable SOFFOS to respond correctly.
- If a complaint appears to be just, SOFFOS shall perform the activities correct as agreed to, unless this has since become senseless for the Principal in a verifiable way. The latter should be confirmed by the Principal in writing.
- If it is no longer possible or of any benefit to still perform the agreed to activities, SOFFOS shall only be responsible within the limits of article 15.
Article 12 Cancellation
- Both parties can cancel the agreement in writing at all time.
- If the agreement is cancelled by the Principal in the interim, SOFFOS is entitled to compensation for the resulting and acceptable loss in profit, unless there are facts and circumstances linked to the cancellation that are accountable to SOFFOS. The Principal is then also held to full payment of the invoices for the activities carried out to that date. The provisional results of the activities carried out to that date, shall then also be made available to the Principal under reservation.
- If the agreement is cancelled in the interim by SOFFOS, SOFFOS shall take care of the transfer of activities still to be rendered to external parties, in discussion with the Principal unless there are facts and circumstances linked to the cancellation accountable to the Principal.
- If the transfer of the activities would incur additional expenses for SOFFOS, this will be charged to the Principal.
Article 13 Suspension and annulment
- SOFFOS is entitled to suspend the observance of the commitments or to annul the agreement, if:
- The Principal does not comply with the commitments from the agreement or does not comply completely.
- After signing the agreement, SOFFOS discovered circumstances that pose reason enough to doubt whether the Principal will comply with the commitments. In case there are good enough reason to assume the Principal would comply only partially or not adequately, the suspension is only allowed for as far as the shortcoming is justifiable.
- Upon signing the agreement, the Principal was required to provide surety to guarantee compliance with his commitments based on the agreement and this surety was not given or it is not enough.
- SOFFOS is also entitled to annul the agreement if circumstances should occur of such a nature that observance of the agreement becomes impossible or based on reasonability and fairness it can no longer be expected or if circumstances occur otherwise that are of such a nature that unchanged observation of the agreement can not be reasonably expected.
- If the agreement is dissolved, SOFFOS’ claims on the Principal become claimable immediately. If SOFFOS suspends the observance of the commitments, he retains his claims by law and based on the agreement.
- SOFFOS still retains the right to claim compensation.
Article 14 Refund of materials made available
- If SOFFOS made materials available to the Principal in the execution of the agreement, the Principal shall return these materials within 14 days in the original state, free of any defects and complete. If the Principal does not comply with this commitment, all resulting expenses shall be accountable to him.
- If the Principal still remain in default with the commitment mentioned under 1 after a relevant reminder, no matter what the reason may be, SOFFOS is entitled to claim the resulting loss and expenses, including the expenses for the replacement, from the Principal.
Article 15 Liability
- If SOFFOS should be responsible, this liability shall be limited to that which is specified in this stipulation.
- If SOFFOS is responsible for a direct loss, the liability shall be limited to a maximum of twice the declared amount, at least that part of the contract to which the liability relates to, at least to a maximum €.500.00 (in words: five hundred euro). The liability is at all times limited to at most the amount of the disbursement paid by SOFFOS’ insurer in the relevant case.
- Contrary to that which is specified under 2 of this article, the liability is further restricted with a contract with a duration exceeding six months, to the fee payable over the last six months.
- Only the following is understood under direct damage:
- the reasonable expenses to determine the cause and the extent of the damage, for as far as the determination relates to damage in the sense of these conditions;
- the possible reasonable expenses incurred to bring SOFFOS’ imperfect performance in line with the agreement, unless this can not be held accountable to SOFFOS;
- reasonable expenses incurred to prevent or limit damage, for as far as the Principal can prove that these expenses have lead to the control of the direct damage as intended in these general conditions.
- SOFFOS shall never be liable for indirect damage including consequential damage, loss of profit, missed savings and loss due to business stagnation.
- The limitations of the liability of immediate loss included in these conditions do not apply if the damage was a result of intent or gross misconduct by SOFFOS or its subordinates.
Article 16 Indemnification
- The principal indemnifies SOFFOS against claims by external parties concerning intellectual property rights on materials or details issued by the Principal, used in the execution of the agreement.
- If the principal issues SOFFOS with information carriers, electronic files or software etc., he guarantees that the information carriers, electronic files or software are free from viruses and malfunctions.
Article 17 Transfer of risk
- The risk of loss or damage to the materials forming the subject of the agreement, transfers to the Principal at the moment when this is legally and/or actually supplied to the Principal, thereby handed over in the power of the Principal or an external party to be appointed by the Principal.
Article 18 Force Majeure
- Parties are not held liable for compliance with any commitment if they were prevented as a consequence of circumstances that are not due to their fault and that can neither by virtue of the law, a legal action or in generally applicable opinions be accountable to them.
- Under force majeure is understood in these general conditions, apart from that which is generally understood regarding this legally and in case law, all external causes, planned or not planned, on which SOFFOS could not have any influence, whereby SOFFOS can not be expected to comply with his commitments.
- SOFFOS is also entitled to call on force majeure if the circumstances preventing (further) observance, takes place after SOFFOS had to comply with his commitments.
- Parties can suspend their commitments based on the agreement during the period that force majeure continues. If this period continues for longer than two months, either of the parties are entitled to cancel the agreement without any commitment to pay compensation for any loss suffered by the other party.
- For as far as SOFFOS had already partially complied with his commitments based on the agreement at the onset of the force majeure, or could have observed this and an independent value could be linked to the complied with or respectively the to be complied with part, SOFFOS is entitled to bill separately for the already observed respectively to be observed part. The Principal is obliged to pay this bill as if it was an individual agreement.
Article 19 Confidentiality
- Both parties are committed to keep secret all confidential information that they should acquire of each other or from any other source in the ambit of their agreement. Information applies as confidential if the other party declared this to be so, or this is clear from the nature of the information.
- If, pursuant to a statutory regulation or a legal verdict, SOFFOS is held to disclose confidential information to external parties indicated by law or through the jurisdiction of the judge, and SOFFOS is unable in this regard to call on a legal right to refuse to give evidence or one acknowledged or allowed by the jurisdiction of the judge, SOFFOS can not be held liable for compensation or recompense and the counter party is not entitled to call for the dissolution of the agreement pursuant to any loss resulting from this.
Article 20 Intellectual property rights and copyright
- Not withstanding what is otherwise stated in these general conditions, SOFFOS retains the rights and competence on which SOFFOS is entitled to pursuant to the Copyright Act.
- All documents issued by SOFFOS, such as reports, recommendations, agreements, designs, sketches, drawings, software etc., are exclusively intended to be used by the Principal and may not be copied, published, or disclosed to external parties by him without prior permission from SOFFOS, unless it is indicated otherwise by the nature of the issued documents.
- SOFFOS is entitled to use the increased knowledge gained through the execution of the activities for other purposes, for as far as no confidential information are thus disclosed to external parties.
Article 21 Disputes
- The judge where SOFFOS is registered is the only authority authorized to hear disputes, unless the Magistrate is authorised. Nevertheless, SOFFOS is entitled to submit the dispute to the jurisdiction of the judge.
- Parties shall only lodge an appeal with the judge after they have tried all possible paths to settle the dispute in mutual discussion.
Article 22 Applicable Law
- Dutch law is applicable on every agreement between SOFFOS and the Principal.
Article 23 Amendment, explanation and location of the conditions
- These conditions were deposited at the offices of the Chamber of Commerce in Tilburg.
- In case of explanation of the content and range of these general conditions, the Dutch text thereof is always deciding. With a difference in view concerning the interpretation of these conditions, the Dutch source document shall always prevail.
- The latest deposited version or the version applicable at the time of signing of the agreement is always applicable. With a difference in view concerning the interpretation of these conditions, the Dutch source document shall always prevail.