We try our best to make sure all of our offers, orders, information and agreements are accurate at all times. The private limited company FIRST BASE Ground Screws Benelux B.V. (hereinafter referred to as “FIRST BASE”) in Uden, operates a professional wholesale company that is mainly engaged in trading and supplying screw foundations and associated items. All work is carried out both in the Netherlands and abroad. For the benefit of all its services and deliveries, FIRST BASE uses the terms and conditions sale and delivery laid down herein (hereinafter referred to as “General Terms and Conditions of Delivery”).
Article 1. Definitions
1. In these General Terms and Conditions of Delivery, the following definitions and expressions are defined as stated below:
a. Client: the other party of the Supplier, as well as personnel of the Client and third parties engaged by the Client for the execution of the Agreement.
b. Supplier: FIRST BASE or an affiliated company and/or legal entities and third parties engaged by them for the execution of the Agreement, as (co-)user of these General Terms and Conditions of Delivery.
c. Parties: the Client and the Supplier.
d. Agreement: obligatory, commitment-creating multilateral legal act between the Client and the Supplier, involving consensus between the Parties, regarding the creation of a work of a material nature, as well as the associated delivery of goods and/or the provision of services for the benefit of the Client.
e. Delivery: placing one or several goods into the possession of and/or surrendering their control to the Client, as well as the possible installation/assembly of one or several these goods and/or the delivery of the created work.
Article 2. General
1. The General Terms and Conditions of Delivery apply to every (subsequent) offer, quotation and/or agreement between the Supplier and the Client, with regard to, for example, but not limited to the delivery of goods and the performance of (assembly) work in that context, which are declared subject to these terms and conditions by the Supplier.
2. Offers and/or quotations are without obligation and are valid for 30 days from the day of dispatch, unless stated otherwise in the offer or quotation.
3. The Supplier is not obliged to abide by his quotations, offers or agreements, nor the figures, calculations and/or prices stated therein, if it is reasonably understandable for the Client that the quotations, offers or agreements, or parts thereof, contain an apparent error and/or mistake.
4. The Supplier will only perform his work under the applicability of these General Terms and Conditions of Delivery. The Supplier does not agree to the applicability of the terms and conditions used by the Client, even if the Client refers to them or sends them, unless otherwise agreed in writing. By extension, the Supplier hereby explicitly rejects any terms and conditions declared applicable by the Client.
5. Agreements between third parties and employees of the Supplier are not binding on the Supplier, insofar as they have not been confirmed in writing by the Supplier or are executed immediately.
6. Verbal assignments or orders are executed in accordance with the notes made by the Supplier and the interpretation given to them. The notes made by the Supplier and the interpretation given to them are leading.
7. Deviations from these terms and conditions are only binding between the Parties if they have been agreed in writing by the Supplier and the Client.
Article 3. Prices
1. All prices mentioned, for example in the offer, quotation or agreement, are quoted in Euros, and are otherwise exclusive of turnover tax, trading, transport, shipping or other levies, unless stated otherwise by the Supplier.
Article 4. Delivery
1. The period specified in the agreement for the performance of the work and/or the specified periods and/or dates for delivery or completion are indicative. The Supplier has the right to deliver the work in parts. Finishing work can still take place after completion. The commissioning of the goods and/or the work by the Client prior to full completion is always at the expense and risk of the Client and from that moment on is deemed to be approval for the completed (part of the) work and the completion.
2. If a term is included or agreed on with regard to the execution of certain work or the delivery of certain goods, this term will never be a strict deadline. If a term is exceeded, the Client must give the Supplier written notice of default and the Supplier must be offered a reasonable term to still be able to properly fulfil the agreement.
3. If the Client fails to take delivery of the goods after the delivery term has lapsed, the goods will be stored at his disposal at his expense and risk.
These goods are considered to have been delivered and the terms of payment also apply. Delivery can be made all at once or in parts at the discretion of the Supplier and the related invoices are to be paid by the Client in accordance with the applicable payment conditions.
4. The method of delivery is always agreed on in writing. Failing this, the method of delivery will be determined by the Supplier.
5. In the event of a manufacturer’s warranty or a warranty from a third party engaged by the Supplier with regard to the work or the delivered goods, then that warranty takes precedence over the Supplier’s warranty, unless the Parties have agreed otherwise in writing.
Article 5. Changes and/or additions to the agreement
1. If during the execution of the agreement it appears that changes and/or additions to the agreement are required for the proper execution thereof or if the Client so wishes, the Parties will do so in mutual consultation.
If the content of the agreement is changed, this may necessarily have consequences for what the Parties have originally agreed upon, including an increase or decrease in the contract price. The Supplier will provide a written statement of this as much as possible. Such a change may result in a change in the term and/or date of delivery or completion. The Client accepts the possibility of amending the agreement as referred to in this article.
2. In the event of a change or addition to the agreement, the Supplier is not authorised to implement it until the Client has given his written approval in this regard.
Article 6. Obligation to provide information
1. The Client is obliged to provide the Supplier in a timely manner with all data and options that are necessary for the preparation of an offer and/or quotation and/or the execution of an agreement. By providing this information, the Client guarantees the correctness of this information.
Article 7. Obligation to examine and complain
1. Immediately after completion of the work and/or delivery of certain goods and/or services by (or on behalf of) the Supplier, the Client is obliged to check the delivered goods for visible defects and to examine whether the quality and quantity of the delivered goods corresponds to what has been agreed on and meets the requirements that the Parties have agreed on in this regard.
2. The Client must notify/report any complaints as a result of a check as referred to in the aforementioned article by registered letter within eight days of discovering the defect. Insofar as complaints relate to goods delivered and/or work performed by third parties, other than a party engaged by the Supplier, they will not be processed.
If complaints are made later than within the aforementioned period, the Client is no longer entitled to repair, replacement or compensation, except when it concerns a claim under warranty and falls within the stated warranty period.
3. Any defects found do not give the right to reject the work delivered in its entirety.
4. The handling of a complaint is not obligatory and explicitly does not count as acceptance of damage, liability or fault.
5. If a complaint is submitted in time pursuant to paragraph 1, the Client remains obliged to purchase and pay for the purchased goods and/or services. If the Client wishes to return any defective goods, this can be done only with the Supplier’s prior written approval and in the manner indicated by the Supplier.
6. If a complaint from the Client is deemed to be well-founded, the Supplier undertakes solely to deliver the performance correctly as yet or, at the discretion of the Supplier, to refund the contract price by crediting the amount of that (partial) performance.
Article 8. Force majeure
8.1. For misunderstanding, mutilation, delays or improper transmission of order data and communications
1. Force majeure occurs when the Supplier is hindered and/or if it is made more difficult or complicated to perform the agreement between the Parties.
2. Force majeure is in any case understood to mean any circumstance that the Supplier could not take into account or could not foresee at the time of entering into the agreement, as a result of which the normal execution of the agreement cannot reasonably be required by the Client, such as illness, sabotage, pandemics, a lack of personnel, delayed delivery or unsuitability of goods, failure of third parties engaged by the Supplier, (power) failure, floods, earthquakes, fire, strikes, government measures, (problems with) permit applications, transport difficulties and problems with an involved lessor.
3. In the event of force majeure, the Supplier is entitled either to maintain the agreement with suspension of the Supplier’s obligations for the duration of the force majeure, or to dissolve the agreement in whole or in part due to unforeseen circumstances. In the event of force majeure, the Supplier will under no circumstances owe or be liable to the Client for compensation for damage and/or costs.
Article 9. Payment and set-off
1. The basic principle is that payment must be made in full in advance and that delivery will not take place before the Supplier has correctly received full payment in advance. The Supplier reserves the right to suspend delivery during the period that all invoices have not been paid in full.
2. In exceptional cases and unless explicitly agreed otherwise and in writing, payment must be made within 30 days of the invoice. This payment term is a deadline.
If, in that case, payment has not been made within 30 days of the invoice date or the agreed payment term, the Client will be in default and will from the day of the default owe the Supplier default interest equal to 1% per calendar month, calculated on the amount of the invoice or the unpaid part thereof.
3. Payments made by the Client always first serve to settle all interest and costs owed and then to settle payable invoices that have been outstanding the longest. This is irrespective of whether the Client states that the payment relates to a later invoice or another claim.
4. From the day the Client is in default with regard to any obligation towards the Supplier, any other claims of the Supplier against the Client are also immediately due and payable.
5. A claim of the Supplier against the Client is immediately due and payable if the latter (a.) is declared bankrupt or has been granted a moratorium, or (b.) an application for this is submitted, (c.) the Client’s goods are seized or (d.) the Client dies, in the event of a natural person.
6. The Supplier is entitled to demand full payment in advance. This will in particular be the case if the Client asks the Supplier to have certain items made to measure. In that case, production will not commence until payment has been received in good order. The Supplier may also require advance payment if the Supplier has doubts about the creditworthiness and/or solvency of the Client and regardless of whether the Parties have agreed on other payment terms.
7. The Client is not authorised to set off amounts owed to the Supplier against amounts (allegedly) owed by Supplier to the Client for whatever reason. The Client is not authorised to set off and/or suspend the relationship with the Supplier.
Article 10. Retention of title
1. All goods delivered by the Supplier remain his property until the Client has fulfilled all payment obligations towards the Supplier.
2. In the event of late payment of an amount due and payable, the Supplier has the right to dissolve the agreement in whole or in part, without notice of default and without judicial intervention, and to claim the goods that are subject to the Supplier’s retention of title as his property, without prejudice to the Supplier’s right for compensation.
3. If the Client does not fulfil his obligations or if there is a well-founded fear that he will not do so, the Supplier is entitled to remove delivered goods subject to retention of title from the Client – or third parties who store the goods for the Client – at the expense of the Client. The Client is obliged to fully cooperate in this, free of charge and without delay, including but not limited to providing information about and access to all (company) sites, spaces and buildings, where the delivered goods are located.
Article 11. Liability
1. If the Supplier is held liable, this liability will be limited to that stipulated by this article.
2. The Supplier will not be liable for any damage or losses, regardless of the nature thereof, due to the Supplier acting upon incorrect and/or incomplete information made available by or on behalf of the Client.
3. If the Supplier should be liable, any liability is (always) limited to the amount paid out by the relevant insurer in the relevant case. If and insofar as no payment is made under any insurance for whatever reason, any liability is always limited to a maximum amount of EUR 10,000.00.
4. The Supplier will be liable for any direct damage only. Direct damage is exclusively understood to mean damage to the work itself and reasonable costs to determine the cause and extent of the damage.
5. The Supplier is never liable for indirect damage and/or trading loss in the broadest sense of the word, consequential damage, loss of profit, (direct or indirect) damage to persons and/or property, by whatever name, which is the result of the purchase, use or the possession of goods delivered by the Supplier, nor is the Supplier liable for such damage in the event of the provision of services or the performance of activities with regard to such goods or of services provided by the Supplier in general.
6. The Client indemnifies the Supplier against all third-party claims in relation to damage within the execution of the agreement and the cause of which damage is attributable to parties other than the Supplier.
Article 12. Prescription and limitation
1. Contrary to the statutory limitation periods, the limitation period for all claims and defences against the Supplier and the third parties involved by the Supplier in the execution of an agreement is one year.
2. All rights of action and associated powers, including but not limited to legal action and/or legal claims of the Client against the Supplier with regard to any compensation and/or due to any shortcoming, will in any case lapse one year after the event or omission from which the compensation or shortcoming arises and for which the Supplier is liable.
Article 13. IP Rights
13.1 If you apply general (purchase) conditions, the present delivery conditions will prevail, insofar as
1. Insofar as the results of the work and whether the work or the goods delivered are created using the Supplier’s intellectual property rights, by whatever name, the Supplier remains the titleholder.
The Supplier grants the Client an exclusive and non-transferable right of use for an indefinite period of time with regard to the relevant intellectual property rights, on the understanding that the Client is given the right to use the materials, but not to reproduce them or to produce derivative works for use.
2. If the Supplier produces a specific, new design (concept, engineering) for the Client in accordance with the assignment, the intellectual property of this design rests with the Client after delivery, but subject to the resolutive condition that the Client has fulfilled his financial obligations with regard to that design towards the Supplier.
3. The Supplier is entitled to also use the knowledge, ideas, designs, images he has gained during the execution of an agreement for other projects, activities or purposes, insofar as this does not involve the disclosure of any strictly confidential information of the Client to third parties.
4. Images, drawings, indications of measures and weights, brightness diagrams and other unspecified data, etc., which appear in catalogues and brochures, or which are included with offers or quotations or are mentioned in an agreement, provide a general representation and are not binding. These documents and/or data remain the property of the Supplier and may not be copied in whole and/or in part or made known to third parties without the written permission of the Client.
5. If the Parties have a difference of opinion about intellectual property rights regarding the results of the Assignment, it will be assumed, barring proof to the contrary, that those rights accrue to the Supplier.
Article 14. Dissolution and early termination of the agreement
1. The Supplier is authorised to suspend the fulfilment of his obligations or to dissolve the agreement with immediate effect if:
a. the Client fails to fulfil his obligations under the agreement, or fails to do so fully or timely, even after receiving a (written or verbal) demand;
b. after the conclusion of the agreement, the Supplier has become aware of circumstances that give good reason to believe that the Client will not fulfil his obligations;
c. the Client was asked to furnish security for the fulfilment of his obligations under the agreement upon the conclusion of the agreement and this security is not provided or appears insufficient;
d. due to delays on the part of the Client, the Supplier can no longer be expected to fulfil the agreement under the conditions originally agreed on;
e. circumstances arise, the nature of which is such that fulfilment of the agreement is impossible or if unaltered maintenance of the agreement cannot reasonably be expected of the Supplier.
2. If the dissolution of the agreement is attributable to the Client, the Supplier is entitled to compensation for the damage, including direct or indirect costs arising from it.
3. Any claims the Supplier has against the Client become in any case immediately due and payable upon dissolution of the agreement.
4. If the Supplier proceeds to suspension or dissolution on the basis of this article, the Supplier is not obliged to compensate damage and costs incurred by the Client as a result.
5. In the event of liquidation, (an application for) suspension of payments, bankruptcy or seizure ordered against the Client, the Supplier is free to terminate the agreement with immediate effect or to cancel the agreement, without the Supplier assuming any obligation or owing the Client any compensation as a result thereof. In that case, the claims of the Supplier against the Client become immediately due and payable.
6. If the Client cancels or partially cancels an order placed, the costs incurred for this will be charged to the Client and those costs will be budgeted as such or budgeted at a minimum amount of 15% of the contract price of the Agreement, which will be at the discretion of the Supplier.
Article 15. Other
1. The Supplier is authorised to engage third parties for the execution of the agreement between the Parties and to have them perform work for the execution of this agreement. The Supplier is not liable for shortcomings of these third parties. Any shortcomings of third parties cannot be attributed to the Supplier.
2. The Client irrevocably authorises the Supplier to at any time enter the (commercial) premises and the associated grounds or the location or immovable property where the work performed by the Supplier has taken place for the execution of the agreement for the Client and/or the delivered goods have been delivered, installed or incorporated in order to hold an inspection, to make an architectural survey in connection with the state of the work and/or property and to take back any delivered goods (which are subject to retention of title).
3. If the Client complies with the provisions of the aforementioned Article 15.2, he owes the Supplier, without notice of default or judicial intervention being required, an immediately due and payable fine of EUR 20,000.00 for each violation and EUR 2,000.00 for each day the violation continues and subject to a maximum of EUR 60,000.00, without prejudice to the Supplier’s right to claim compensation from the Client for damage that exceeds this penalty clause.
4. Provisions of these terms and conditions, which by their nature are intended to continue after the end of the Agreement, will remain in force thereafter.
5. If and insofar as one or more of the provisions of these General Terms and Conditions of Delivery should prove to be void or voidable, this will not affect the validity of the other provisions and the Parties will agree on a new provision that corresponds as much as possible to the void or voided provision.
6. In the event of disputes regarding the contents and interpretation of these general terms and conditions, the Dutch text will always prevail.
7. The Client indemnifies the Supplier against any claims from and/or damage suffered by third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than the Supplier, including third-party claims with regard to intellectual property rights on materials or data provided by the Client, which are used for the execution of the agreement. If the Supplier is held liable for this by third parties, the Client is obliged to assist the Supplier both in and out of court and to immediately do everything that may be expected of him in that case. If the Client remains in default in terms of taking adequate measures, the Supplier, without further notice of default, is entitled to take these measures instead. All costs and damage on the part of the Supplier and third parties arising as a result will be entirely at the expense and risk of the Client.
8. If the Client provides the Supplier with data carriers, electronic files or software, etc., he guarantees that the data carriers, electronic files or software are free of viruses and defects.
Article 16. Note
1. For the sake of completeness, the Supplier hereby points out to the Client that insofar as the Client processes goods and/or products of the Supplier with an electric or hydraulic machine or processes them into the ground in another way, the Client is by law, including the Aboveground and Underground Grids (Information Exchange) Act or the Earth-Moving Suppliers’ Regulations or laws following it, obliged to request a KLIC report from the competent authorities or the Land Registry. Together with any construction drawings of the property on which pipes and underground objects are mentioned. The Client must first obtain an insight into underground objects, such as pipes and other infrastructural facilities in the subsurface, prior to the work being carried out, in order to prevent damage to property and/or injury to persons.
2. Liability and/or an obligation to compensate damage to property and/or injury to persons by the Supplier is at all times excluded, insofar as the Client has not submitted a KLIC report and if he has not demonstrably gained insight into the ground and underground objects first and prior to the work.
Article 17. Applicable law and disputes
1. All agreements concluded and to be concluded by the Supplier, as well as other legal relationships between the parties, are exclusively governed by Dutch law.
The applicability of the 1980 Vienna Sales Convention is excluded.
2. All disputes – including those that are only regarded as such by one of the parties – arising as a result of an agreement to which the present terms and conditions apply in whole or in part, or as a result of other agreements that are the result of such an agreement, will be settled by the competent court in ‘s-Hertogenbosch in the Netherlands, unless a mandatory legal provision opposes this. This does not affect the fact that the Supplier can agree with the Client to have the dispute settled by means of independent arbitration, mediation or by way of binding decision.