Terms and Conditions
- These terms and conditions apply to all offers made by Fenestro Gevelbeheer, to all agreements it concludes and all agreements arising therefrom, all this insofar as Fenestro Gevelbeheer is a provider or supplier. Fenestro Gevelbeheer using these terms and conditions is referred to as a contractor or seller. The other party is referred to as the client or buyer.
- These general terms and conditions may only be used by Fenestro Gevelbeheer.
- In the event of a conflict between the content of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement will prevail.
- Any deviations from these terms and conditions only apply if they have been confirmed in writing by the contractor to the client.
Article 2: Offers
2.1 All offers are without obligation.
2.2 In the event that the client provides the contractor with data, drawings or other information, the contractor may assume that these are correct and complete and will base its offer on this.
Article 3: Intellectual property rights and duty of confidentiality
3.1. Unless expressly agreed otherwise in writing, the contractor retains the copyrights and industrial property rights to the offers made by him, designs, images, drawings, calculations, (test) models, software, etc. provided by him, even if the client has been asked to produce them. costs have been charged.
3.2. With regard to everything included in paragraph 1 of this article, the client is subject to a duty of confidentiality. Without the prior explicit written permission of the contractor, the client may not reproduce or disclose any information and data in this respect.
3.3. In the event of a violation of the provisions in paragraphs 1 and 2 of this article, the client will owe the contractor an immediately due and payable fine of € 25,000 (excluding VAT) per violation. This penalty can be claimed in addition to compensation under the law.
Article 4: Advice, designs and materials
4.1. The client cannot derive any rights from advice and information that it receives from the contractor if these do not directly relate to the assignment.
4.2. The client is responsible for the drawings, calculations and other data provided by him or on his behalf and for the functional suitability of the materials, application method and surface treatment prescribed by or on behalf of him.
4.3. The client indemnifies the contractor against any claim from third parties with regard to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the client.
4.4. The Client may examine the materials that the Contractor wishes to use before they are processed, or have them examined at its own expense. If the contractor suffers damage as a result, this will be for the account of the client.
Article 5: Delivery time and/or implementation period
5.1. The delivery time and/or execution period of the entire delivery, the entire work, the partial work or the partial deliveries will be determined approximately by the contractor.
5.2. When determining the delivery time and/or performance period, the contractor assumes that it can perform the assignment under the circumstances as known to it at that time.
5.3. The delivery period and/or performance period commences when agreement has been reached between the client and the contractor on all commercial and technical details, all necessary data, final and approved drawings, etc. are in the possession of the contractor, the agreed (instalment) payment has been received and to the necessary conditions for the execution of the assignment are met.
5.4. If there is: a. circumstances other than those known to the contractor when it determined the delivery time and/or performance period, the contractor may extend the delivery time and/or performance period by the time that the contractor needs, with due observance of its planning, to complete the assignment under these circumstances. to feed; b. additional work, the delivery time and/or performance period will be extended by the time that the contractor needs to deliver the materials and parts required for the implementation of the additional work (or have them delivered) and to carry out the additional work; c. suspension of obligations by the contractor, the delivery period and/or performance period will be extended by the time that the contractor needs to carry out the assignment, with due observance of its planning, after the reason for the suspension has lapsed. If it is not possible to fit into the schedule of the contractor when the above mentioned under a, b and/or c occurs, the work will be carried out as soon as the schedule of the contractor allows this.
5.5. The client is obliged to pay all costs that the contractor incurs or damage that the contractor suffers or will suffer as a result of a delay in the delivery time and/or implementation period, with regard to the circumstances as stated in paragraph 4 of this article.
5.6. Exceeding the delivery time and/or performance period does not entitle the client to compensation or dissolution under any circumstances. The client indemnifies the contractor against any claims from third parties as a result of exceeding the delivery time and/or implementation period.
5.7. Exceeding the implementation period towards the contractor gives the contractor the right to dissolve.
Article 6: Risk transfer
6.1. In the case of purchase (without assembly), delivery takes place ex works, ‘ex works’, in accordance with the Incoterms, as they read three months before the conclusion of the agreement; the risk of the item is transferred at the moment that the seller makes it available to the buyer. Nevertheless, the buyer and seller can agree that the seller will take care of the transport. The risk of storage, loading, transport and unloading also rests with the buyer in that case. The buyer can insure himself against these risks.
6.2. When work is contracted, the risk of the work passes to the client after delivery.
6.3. In the case of work carried out by third parties or work through one’s own actions, the risk of the contractor immediately passes to the client.
Article 7: Price change
7.1. If price increases occur after the date on which the agreement was concluded, for example due to changing laws and regulations, and the contractor has not yet completed compliance with the agreement, the contractor may pass on an increase in the price-determining factors to the client.
7.2. The Client is obliged to pay the price increase, as referred to in paragraph 1 of this article, at the discretion of the Contractor at one of the following times:
- if the price increase occurs;
- at the same time as payment of the principal sum;
- at the next agreed payment term.
7.3. The price increase referred to in paragraph 1 is calculated on the basis of the increase in the purchase prices that the contractor must apply. (the CBS index figure ‘producer price index (PPI) 2512 Doors and windows, made of metal’ determined by Statistics Netherlands on the most recent time basis)
Article 8: Force majeure
8.1. The contractor has the right to suspend the fulfillment of his obligations if he is temporarily prevented from fulfilling his contractual obligations towards the client due to force majeure.
8.2. Force majeure is understood to mean, among other things, the circumstance that suppliers and subcontractors of the contractor or transporters engaged by the contractor or other parties on which the contractor depends do not or do not timely comply with their obligations due to earthquakes, natural disasters, pandemics, war, terrorism, cyber crime, disruption of the digital infrastructure, fire, power failures, weather conditions, loss, theft or loss of tools or materials or information, roadblocks, strikes or work stoppages and import or trade restrictions. (in accordance with Section 6:75 of the Dutch Civil Code)
8.3. The Contractor is no longer authorized to suspend if the temporary impossibility of performance has lasted more than six months. The client and the contractor can terminate the agreement with immediate effect after this period, but only for that part of the obligations that has not yet been fulfilled.
8.4. In the event of force majeure and fulfillment is or becomes permanently impossible, both parties are entitled to terminate the agreement with immediate effect for that part of the obligations that has not yet been fulfilled.
8.5. The parties are not entitled to compensation for damage suffered or to be suffered as a result of force majeure, suspension or termination within the meaning of this article.
Article 9: Scope of the work
9.1. The Client must ensure that the public and private law permissions, including all permits, exemptions and other decisions necessary to carry out the work, are obtained in a timely manner.
9.2. The work does not include the following activities:
- groundwork, piling, chopping, breaking, concrete, foundation work, masonry, carpentry, tile, plastering, painting, wallpapering, scaffolding, repair work or other construction work and work on central heating systems and such;
- gas, water, electricity or other infrastructure facilities;
- activities to prevent or limit damage to, on or near the work;
- removal of materials, building materials or waste;
- vertical transport on the construction site.
9.3. The work also does not include the supply and installation of fasteners, such as anchor rails, screw sleeves and inserts, as well as rules of thumb and other provisions that are necessary for the assembly of goods.
Article 10: Changes in the work
10.1. Changes in work can result in additional or less work if:
- there is a change in the design, specifications or specifications;
- the information provided by the client does not correspond to reality;
- the tolerances measured in the work do not correspond to the agreements made about this.
10.2. Additional work is calculated on the basis of the value of the price-determining factors that apply at the time the additional work is performed. Less work is settled on the basis of the value of the price-determining factors that applied at the time of concluding the agreement.
10.3. The Client is obliged to pay the price of the additional work as referred to in paragraph 1 of this article at one of the following moments, at the discretion of the Contractor:
- if the additional work occurs;
- at the same time as payment of the principal sum;
- at the next agreed payment term.
10.4. If the sum of the less work exceeds that of the additional work, the contractor may charge the client 10% of the difference in the final settlement. This provision does not apply to less work that is the result of a request from the contractor.
Article 11: Execution of the work
11.1. Client ensures that:
- in accordance with the requirements of national and possibly international laws and regulations regarding working conditions at the start of the work, all necessary safety provisions – such as, but not limited to, safety nets, edge protection, attachment points for safety lines, cordons of underlying areas or work floors – have been taken and during the work are maintained. This ensures safe and healthy working conditions for the mechanics;
- the fitters are given the opportunity to start their work immediately upon arrival at the construction site;
- the work can be carried out during normal working hours;
- the access roads to the construction site or wherever the goods are to be delivered are suitable for the contractor’s transport vehicles;
- the designated construction site is suitable for assembly and, in the opinion of the contractor, there is sufficient space on the construction site and within any fencing present for the installation of storage space;
- around the building or object in question there is a roadway suitable for the use of mobile cranes, as well as a leveled strip of soil with a minimum width of 5 metres;
- there are sufficient connection options for water, lighting and electricity within a distance of 50 meters from the workplace, whereby the electrical connection must be suitable for 230/380 volts, with sufficient power;
- clean and clearly visible axis lines and level measurements have been applied at sufficient places in the structure;
- suitable housing(s) and/or other facilities, such as toilet and washing facilities, are available on the construction site for the contractor’s personnel and all other persons possibly employed by the contractor for the assembly, all this to the satisfaction of the contractor and in accordance with the Working Conditions Act.
11.2. In the event of unworkable circumstances, the contractor’s delivery and/or performance period will be extended by the stagnation time that has arisen as a result of the unworkable circumstances.
- Unworkable circumstances include: all circumstances, including unworkable weather (such as precipitation, wind and frost), that cause an (unsafe) work situation that does not comply with the Van Iersel Geveltechniek H&S plan , or that the work cannot be carried out as a result. Days on which there are unworkable circumstances will be regarded by the contractor as unworkable working days.
- Unworkable working days are understood to mean: working days or half working days on which, due to circumstances beyond the responsibility of the contractor, it was not possible to work for at least five hours or at least two hours respectively by the majority of the persons or machines employed.
11.3. The contractor accepts no liability for facilities, resources, materials, auxiliary materials, machines, scaffolding, scaffolding, vehicles, lifts, ladders and the like made available by the client itself. The client guarantees that these facilities meet the (construction) safety requirements prescribed by the government and will indemnify the contractor against any claims from third parties with regard to damage caused by the use of the aforementioned facilities.
11.4. The client bears the risk and is liable for damage in connection with loss, theft, burning and damage to property of the contractor, client and third parties, such as tools, materials intended for the work or equipment used for the work, which are located at the place where the work is performed or at another agreed location.
11.5. The Client is obliged to take out adequate insurance against the risks referred to in paragraph 2 of this article. In addition, the Client must ensure insurance of the work risk of equipment to be used. The client must send the contractor a copy of the relevant insurance(s) and proof of payment of the premium at the contractor’s first request. In the event of damage, the client is obliged to report this immediately to its insurer for further treatment and settlement.
11.6. If the client does not fulfill its obligations as described in the previous paragraphs and this causes a delay in the performance of the work, the work will be carried out as soon as the client still fulfills all its obligations and the contractor’s schedule allows this. The client is liable for all damage resulting from the delay for the contractor.
Article 12: Completion of the work
12.1. In this article, delivery is understood to mean the complete or partial delivery of the work by the contractor in accordance with paragraph 2 of this article to the client or to the principal, all this in accordance with what has been agreed between the client and the contractor. QUALITY MARK
12.2. The work, or part of the work in accordance with the specifications, is considered delivered when:
- the client has approved the work in whole or for the relevant part;
- the work has been taken into use by the client or a third party;
- the contractor has notified the client in writing that the work has been completed and the client has not made known in writing within fourteen days of the notification whether or not the work has been approved;
- the client does not approve the work on the grounds of minor defects or missing parts, which can be repaired or subsequently delivered within thirty days and which do not prevent the work from being put into use.
12.3. If the client does not approve the work or a part or parts of the work, he is obliged to inform the contractor of this in writing, stating the reasons, within the term referred to in Article 12, paragraph 2, under c.
12.4. If the client rightly does not approve the work or part or parts of the work, it will give the contractor the opportunity to deliver the rejected parts of the work again. The provisions of this article apply again.
Article 13: Liability
13.1. In the event of an attributable shortcoming, the contractor is obliged to fulfill its contractual obligations as yet.
13.2. The contractor’s obligation to compensate damage, on whatever basis, is limited to that damage against which the contractor is insured under an insurance policy taken out by or on behalf of the contractor. However, the size of this obligation never exceeds the amount that is paid out under this insurance in the relevant case.
13.3. If, for whatever reason, the contractor cannot invoke the provisions of paragraph 2 of this article, its obligation to compensate damage is limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the contract amount for that part or partial delivery.
13.4. Not eligible for reimbursement:
- consequential damages. Consequential damage includes, among other things, stagnation damage, loss of production, lost profit, transport costs and travel and accommodation costs. If possible, the Client can insure itself against this damage;
- supervisory damage. Supervisory damage is understood to mean, among other things, damage caused by or during the performance of the work to items that are being worked on or to items that are located in the vicinity of the place where work is being performed. If desired, the Client can insure itself against this damage;
- damage caused by intent or deliberate recklessness on the part of auxiliary persons or non-executive subordinates of the contractor.
Sub 1: deliberate recklessness means acting not in accordance with the manual of the relevant brand.
- damage caused by third parties
Article 14: Warranty
14.1. Unless agreed otherwise in writing, the contractor guarantees the proper performance of the agreed performance for a period of five years after delivery. If a different warranty period has been agreed, the other paragraphs of this article also apply.
14.2. Contrary to the five-year period referred to in paragraph 1 of this article, the warranty period on ventilation grilles and hinges and locks will be one year.
14.3. If the contractor uses materials or services supplied by third parties in the performance of its performance, the contractor’s guarantee to the client will in no case extend beyond the guarantee that the contractor obtains from these third parties.
14.4. If the agreed performance consists of contracting work, the contractor guarantees the soundness of the construction delivered and the materials used for the period referred to in paragraph 1, provided that he was free to choose these. If it appears that the delivered construction or the materials used are not sound, the contractor will repair or replace them at his discretion.
14.5. If the agreed performance only consists of the delivery of a good, the contractor guarantees the soundness of the delivered good during the period referred to in paragraph 1 or paragraph 2. If it appears that the delivery has not been sound, the item must be returned carriage paid by the client to the contractor within a reasonable period of time. Subsequently, the contractor will choose whether to:
– repairs the case;
– replaces the item;
– the client credits for a proportionate part of the invoice.
The Contractor itself determines the manner and time of execution. Any travel, accommodation, shipping and/or transport costs incurred, as well as the costs of disassembly and assembly, will be borne by the client. If the agreed performance (partly) consisted of processing material supplied by the client, the client must supply new material at its own expense and risk.
14.6. If the cost of replacement or repair shall be borne by the contractor, the contractor has to pay the amount is limited to no more than that portion of the invoice amount (excluding vat), which refers to the manufacture and installation of the repaired or replaced item. The division of the manufacturing and assembly costs of the parts is, unless otherwise agreed, in percentages of the invoiced contract price as follows:
- profiles and sheet metal 30%
- surface treatment 10%
- seals 5%
- glass and panels 20%
- hinges and locks etc
10% A fixed percentage of 10% of the invoice amount is charged for the costs of assembly, ie the stated percentages of the invoice amount are each reduced by 10%.
14.7. The Client must in all cases offer the Contractor the opportunity to repair any defect or to replace a defective part or part. The client will not allow the contractor to use energy, hoisting, lifting and transport equipment, scaffolding, window cleaning installations and the like free of charge.
14.8. The guarantee only takes effect when the client has fulfilled all its obligations towards the contractor. If the start date of the warranty is suspended, the end date of the warranty will not be changed.
14.9. The warranty period is not extended or renewed by redelivery, replacement or repair.
14.10. No guarantee is given for defects such as, or defects that are the result of:
- weathering and/or normal wear and tear;
- improper or abnormal use;
- the lack of maintenance or cleaning in accordance with the relevant provisions of the VMRG Quality Requirements and Advice, as they apply three months before the conclusion of the agreement;
- installation, assembly, modification, repair or additions by the client or by third parties;
- small imperfections in the finish, which do not detract from the soundness;
- damage resulting from changes in the shape of architectural structures, from incorrectly carried out construction, repair, cleaning or other work or from the use of material(s) unsuitable for the purpose;
- damage resulting from unforeseen, temporary or permanent harmful influence(s) of the environment;
- items, materials, working methods and constructions that deviate from the regulations, requirements and advice referred to in the VMRG Quality Requirements and Advice®, insofar as these have been applied on the explicit instruction of the client;
- defects in or unsuitability of goods originating from or prescribed by the client or defects in or unsuitability of materials or tools used by the client;
- filiform corrosion;
- color differences and/or loss of gloss in accordance with the relevant provisions of the VMRG Quality Requirements and Advice®, as they apply three months before the conclusion of the agreement;
- defects that could have been discovered at the time of delivery;
- damage and/or defects that have arisen during or after delivery due to external influences;
- installing or using sun blinds, window cleaning installations, ladders and the like;
- (thermal) glass breakage or the application of (mirror) wire glass;
- damage as a result of heat load above 70˚C;
- sealant, except for watertightness.
14.11. The provisions of paragraphs 3 to 10 of this article apply mutatis mutandis to any claims by the client based on breach of contract, non-conformity or any other basis.
14.12. The Client cannot transfer rights under this article.
Article 15: Complaint obligation
15.1. The Client can no longer invoke a defect in the performance if it has not complained to the Contractor in writing within fourteen days after it discovered the defect or should reasonably have discovered it.
15.2. The client must submit complaints about the amount of the invoice to the contractor in writing within the payment term, under penalty of forfeiture of all rights. If the payment term is longer than thirty days, the client must have submitted a written complaint within thirty days of the invoice date.
Article 16: Obligations not fulfilled by the client
16.1. If the contractor is willing and able to fulfill its obligations under the agreement, but its fulfillment is prevented by a cause that lies within the client’s sphere of risk and that can be attributed to the client – which expressly includes non-compliance by the client with the planning of the project or sub-project by him in accordance with the planning agreed with the contractor – then the client is liable for the costs incurred by the contractor, lost interest and damage suffered.
16.2. The client is obliged to take delivery of the item or items that are the subject of the agreement after the delivery period and/or performance period has expired.
16.3. The client must provide all cooperation that can reasonably be expected of him in order to enable the contractor to make delivery.
16.4. Goods that have not been purchased will be stored at the expense and risk of the client.
16.5. In the event of violation of the provisions of paragraphs 2 and/or 3 of this article, the client will owe the contractor a fine of € 250 per day with a maximum of € 25,000. This penalty can be claimed in addition to compensation under the law.
Article 17: Payment
17.1. Payment is made at the location of the contractor or to an account to be designated by the contractor.
17.2. Unless agreed otherwise, payment will be made as follows:
- at counter sales in cash;
- if installment payment has been agreed, unless otherwise agreed:
– 30% of the total price upon assignment;
– 30% of the total price at the start of production;
– 30% of the total price after delivery of the material;
– 10% of the total price upon delivery;
- in all other cases within thirty days of the invoice date.
17.3. If the client does not fulfill its payment obligation, it is obliged, instead of paying the agreed amount, to comply with a request from the contractor for payment.
17.4. Irrespective of the agreed payment conditions, the client is obliged, at the contractor’s first request, to provide sufficient security for payment, in the opinion of the contractor. If the client does not comply with this within the set term, it will immediately be in default. In that case, the contractor has the right to dissolve the agreement and to recover its damage from the client.
17.5. The right of the client to set off or suspend its claims against the contractor is excluded, unless the contractor is declared bankrupt or the statutory debt restructuring applies to the contractor.
17.6. Irrespective of whether the contractor has fully performed the agreed performance, everything that the client owes him under the agreement is immediately due and payable if (art. 3:236 DCC, art. 3:248 DCC):
- a payment term has been exceeded;
- the bankruptcy or suspension of payment of the client has been applied for;
- goods or claims of the client are seized;
- client (company) is dissolved or liquidated;
- the client (natural person) requests to be admitted to statutory debt rescheduling, is placed under guardianship or has died.
17.7. If payment has not been made within the agreed payment term, the client will immediately owe interest to the contractor. The interest is at least 12% per year, but is equal to the statutory interest if this is higher. For the interest calculation, part of a month is regarded as a full month.
17.8. The contractor is authorized to set off its debts to the client against claims of companies affiliated with the contractor against the client. In addition, the contractor is authorized to set off its claims against the client against debts owed to the client by companies affiliated with the contractor. Furthermore, the contractor is authorized to set off its debts to the client against claims against companies affiliated with the client. Affiliated companies are understood to mean the companies that belong to the same group, within the meaning of Article 2:24b of the Dutch Civil Code, and a participating interest within the meaning of Article 2:24c of the Netherlands Civil Code.
17.9. If payment has not been made within the agreed payment term, the client will owe the contractor all extrajudicial costs with a minimum of € 75.00. The costs are calculated on the basis of the following table (principal sum including interest): – on the first €3,000 15% – on the excess up to €6,000 10% – on the excess up to €15,000 8% – on the excess up to € 60,000 5% – over the excess from € 60,000 3% The extrajudicial costs actually incurred are due if they are higher than follows from the above calculation.
17.10. If the contractor is found in the right in legal proceedings, all costs incurred in connection with these proceedings will be borne by the client.
Article 18: Retention of title and pledge
18.1. After delivery, the contractor remains the owner of the delivered goods, as long as the client: a. fails or will fail to fulfill its obligations under this agreement or other agreements; b. does not pay or will not pay for work performed or still to be performed under such agreements; c. claims arising from non-compliance with the above agreements, such as damage, penalty, interest and costs.
18.2. As long as a retention of title applies to the delivered goods, the client may not encumber or alienate them outside its normal business operations.
18.3. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The Client will fully cooperate in this respect.
18.4. If the contractor cannot invoke its retention of title because the delivered goods have been mixed, distorted or checked, the client is obliged to pledge and/or mortgage the newly formed goods to the contractor.
18.5. If the client has fulfilled its obligations after the goods have been delivered to it by the contractor in accordance with the agreement, the retention of title with regard to these items will revive if the client fails to fulfill its obligations under an agreement concluded later.
Article 19: Termination of the agreement
If the client wishes to terminate the agreement without the contractor being in default and the contractor agrees to this, the agreement will be terminated by mutual consent. In that case, the Contractor is entitled to compensation for all financial loss, such as loss suffered, lost profit and costs incurred.
Article 20: Applicable law and choice of forum
20.1. In terms of applicable law and exclusion regulations, the following conditions apply:
- Dutch law applies to all agreements to which these terms and conditions apply in whole or in part.
- The Vienna Sales Convention (CISG) is not applicable, nor are any other international regulations from which exclusion is permitted.
20.2. Undisputed monetary claims arising from an agreement to which these terms and conditions apply will be submitted for collection to the civil court that has jurisdiction in the place of business of the contractor, unless this is contrary to mandatory law. The Contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.
20.3. All other disputes arising from an agreement to which these terms and conditions apply will be subject to the judgment of an arbitral tribunal to the exclusion of the ordinary court.
20.4. The arbitral tribunal referred to in paragraph 3 of this article is appointed in accordance with the articles of association of the Arbitration Board for the Construction Industry, and makes its decision with due observance of the articles of association of that Board.