General Delivery Terms Funcha! B.V.
Article 1 – Quotation
1.1 The quotation is issued in writing or electronically, except in urgent circumstances.
1.2 The quotation includes:
– the location of the work;
– description of the work:
– according to which drawings, technical descriptions, designs and calculations the work will be carried out;
– the date and time of commencement of the work;
– the period within which the work will be completed. This is determined by allocating either a certain day or a number of workable working days;
– the pricing method that will be used for the work to be performed is the ‘contract sum’, i.e. Funcha! B.V. issues a fixed amount for the work described in the quote;
– or payment of the contract sum in instalments will take place;
– the applicability of these general terms and conditions to the quotation and to the contracting agreement arising therefrom.
1.3. A cost item is included in the quotation for unforeseen costs. This is an item that is called on if planned expenses are higher than expected. Costs are covered this way. If these costs have not been incurred then this will be settled with the final instalment.
1.4 The quotation is dated and starts on that day and is valid for thirty days.
1.5. Drawings, technical descriptions, designs and calculations, which are manufactured by Funcha! B.V. or on its instructions, remain the property of Funcha! B.V.. They may not be presented or shown to third parties for the purpose of obtaining a comparable offer. They also may not be copied or otherwise multiplied. If no assignment is granted, these documents must be returned within 14 days after request by Funcha! B.V. at the expense of the client.
Article 2 – Contract and contract documents
2.1 The agreement is concluded by written acceptance of the quotation or order confirmation by the client.
2.2 If an assignment is given by two or more clients, they are jointly and severally liable and Funcha! B.V. is entitled to compliance from all of them for the assignment as a whole.
2.3 Contradictions in or between contract documents shall be interpreted, with due regard for fairness, to the detriment of the person by or on whose behalf these have been drawn up. This does not affect the obligation of the parties to warn each other in case of obvious contradictions.
Article 3 – Obligations of the client
3.1 Unless agreed otherwise, the client will ensure that Funcha! B.V. has timely access:
1. to data and approvals required for the design of the work (such as public and private law authorisations), if necessary in consultation with Funcha! B.V.;
2. to the building, the terrain or the water in or on which the work must be carried out;
3. to sufficient opportunity for the supply, storage and/or removal of building materials and resources;
4. to connections for electrical machines, lighting, heating, gas, compressed air and water.
5. to accommodation, meals, drinks and a good Wi-Fi connection for the employees of Funcha! B.V. and its subcontractors who perform multi-day work on the site. Accommodation must be clean and average to good quality.
3.2 The required electricity, gas and water are at the expense of the client.
3.3 The costs of transport abroad, including all additional costs, customs costs and costs resulting from delay of the transport are at the expense of the client, unless otherwise agreed.
3.4 The client is not permitted to carry out work or have work carried out by third parties before the day on which the work is deemed to have been completed, subject to permission from Funcha! B.V..
3.5 Without the prior written or electronic permission of Funcha! B.V., the client is not allowed to transfer their rights and obligations from the agreement to a third party before the day on which the work is deemed to have been completed.
3.6 The client is responsible for obtaining the correct permits on time before the actual construction is started.
Article 4 – Obligations of Funcha! B.V.
4.1 Funcha! B.V. is obliged to carry out the work properly and to the provisions of the agreement. Subcontractor must perform the work in such a way that resulting damage to persons, goods or the environment is limited as much as possible. Funcha! B.V. is also obliged to comply with orders and instructions issued by or on behalf of the client insofar as these relate to general safety.
4.2 The execution of the work must be such that the completion of the work is guaranteed within the agreed term.
4.3 Funcha! B.V. is deemed to be familiar with the statutory regulations and government orders that are relevant to the execution of the work, insofar as these apply on the day of the offer. The consequences of compliance with these regulations and rulings are borne by the Subcontractor.
4.4 Funcha! B.V. has a KLIC report issued before the start of the work. The outcome of this is incorporated in the plan for the work.
4.5 Prior to the transfer of the work an inspection is carried out by a certified body. After unconditional approval, the work can be released.
4.6 Funcha! B.V. is obliged to point out to the client imperfections in constructions and working methods prescribed by or on behalf of the client and in orders and instructions given by or on behalf of the client, as well as defects in building materials and tools made available or prescribed by the client, to the extent that Funcha! B.V. knew or reasonably should have known these.
Article 5 – Cost-increasing circumstances
5.1 Cost-increasing circumstances are circumstances: – which are of such a nature that at the conclusion of the agreement no account should be taken of the chance that they would occur, – which Funcha! B.V. cannot be held accountable for and – which increase the cost of the work.
5.2 Cost-increasing circumstances give Funcha! B.V. the right to compensation for the resulting consequences.
5.3 If Funcha! B.V. is of the opinion that cost-increasing circumstances have occurred, it must inform the client as soon as possible in writing or electronically. Subsequently, the parties will consult in the short term about whether cost-increasing circumstances have occurred and, if so, to what extent the cost increase will be reimbursed in reasonableness and fairness.
5.4 The client is entitled to limit, simplify or terminate the work instead of agreeing to compensation. The amount that the client owes in this case will be determined according to standards of reasonableness and fairness.
5.5 Funcha! B.V. reserves the right to recover cost-increasing circumstances as a result of VAT increases in countries other than the Netherlands from the client.
Article 6 – Increased and reduced costs
6.1 Settlement of increased and reduced costs takes place: in case of changes to the agreement or in the conditions of execution;
6.2 In the event of changes desired by the client in the agreement or in the conditions of execution, Funcha! B.V. can only demand an increase in the price if it has pointed out to the client the necessity of a resulting price increase in a timely manner, unless the client should have understood that necessity by himself.
6.3 Changes in the agreement or the conditions of execution will be agreed in writing or electronically, except in urgent circumstances. The lack of a written or electronic assignment is without prejudice to the claims of Funcha! B.V. and of the client for settlement of increased or reduced costs. In the absence of a written order, the proof of the change shall lie with the person making the claim.
6.4 If the client instructs the execution of additional work, Funcha! B.V. may charge 25% of the agreed amount by way of advance payment. Funcha! B.V. will be able to invoice the remainder at the completion of the additional work or at the first instalment thereafter. Unless otherwise agreed, reduced costs by Funcha! B.V. will be settled in the final settlement.
6.5 If the final settlement of the work shows that the total amount of the reduced costs exceeds the total amount of the increased costs, Funcha! B.V. is entitled to an amount equal to 10% of the difference of those totals.
6.6 Costs arising from reduced cost due to the actions of the client can be passed on by Funcha! B.V. to the client.
Article 7 – Payment
7.1 If payment in instalments has been agreed, Funcha! B.V. will send the relevant invoice to the client each time after or after issue of a payment term. The sales tax owed by the client to Funcha! B.V. is stated separately.
7.2 Payment of a submitted invoice must take place no later than 14 days after the invoice date, on the understanding that all submitted instalment invoices and the invoices relating to the agreed additional work must be paid at delivery, without prejudice to the applicability of article 8 and article 13 and on condition that Funcha! B.V. has submitted these invoices in time for the delivery. Funcha! B.V. is entitled to submit the invoice for the due date of delivery 14 days before the planned delivery.
7.3 Within a reasonable period after the day on which the work is delivered, Funcha! B.V. will submit the final invoice.
7.4 Payment of the amount of the final invoice due to Funcha! B.V. must take place no later than 30 days after the day on which Funcha! B.V. has submitted the final invoice, all this without prejudice to the provisions of Article 13.
7.5 Only after payment of the last instalment will Funcha! B.V. provide the client with the temporary/final certificate and the work will be signed off for use by the client.
Article 8 – Delivery and maintenance period
8.1 The work is deemed to have been completed when Funcha! B.V. BV has informed that the work is ready for completion and the client has accepted the work. A completion report to be signed by both parties will be drawn up on completion. Shortcomings identified by the client that are not recognised by Funcha! B.V. will be mentioned as such in the completion report.
8.2 If Funcha! B.V. has stated that the work is ready for completion and the client does not confirm within 8 days whether or not they accept the work, the work is deemed to have been completed.
8.3 If the client rejects the work, they must do so in writing or electronically, stating the defects that are the reason for rejection. Small defects, which can be repaired in the maintenance period, will not be allowed to be a reason for rejection, provided that they do not interfere with any commissioning.
8.4 If the client puts the work into service, the work will be deemed to have been completed.
8.5 If the parties establish that, in view of the nature or extent of the shortcomings, completion cannot reasonably be expected, Funcha! B.V. will, after consultation with the client, specify a new date on which the work will be ready for completion.
8.6 After the day on which the work is delivered, the work is at the risk of the client.
8.7 Shortcomings acknowledged by Funcha! B.V. are repaired as soon as possible.
8.8 After the day on which the work is delivered, a maintenance period of 30 days commences.
Article 9 – Completion time, postponement of completion and compensation for late completion
9.1 If the term within which the work will be delivered is expressed in workable working days, the working day shall be understood to be a calendar day, unless it falls on a day of rest/holiday or other non-individual day off, recognised by the place of work, by the government or pursuant to a collective labour agreement. Working days and half workdays, respectively, are deemed to be unworkable if due to the conditions for which Funcha! B.V. is not responsible, the majority of workers or machines cannot at least work for five hours or at least for two hours respectively.
9.2 Funcha! B.V. is entitled to extend the period within which the work will be completed if due to force majeure, due to circumstances arising on behalf of the client, or as a result of increased or reduced costs, Funcha! B.V. cannot be expected to complete the work within the agreed term.
9.3 Deviations between the KLIC report and the actual situation are the responsibility and risk of the client, Funcha! B.V. is indemnified by the client for all (consequential) damage if the actual situation deviates from the outcome of the KLIC report.
9.4 If the commencement or progress of the work is delayed by factors for which the client is responsible, the damage and costs arising from this for Funcha! B.V. must be compensated by the client.
Article 10 – Client remaining in default
10.1 If the client remains in default with the payment of what they owe to Funcha! B.V. pursuant to the agreement, they shall owe statutory interest with effect from the due date. If no payment has taken place after 14 days after the due date, the interest rate referred to in the previous sentence will be increased by 2.
10.2 If the client does not pay in time, Funcha! B.V. is entitled to collect the amount due, provided that they have instructed the client in writing or electronically to still pay within 14 days and that payment has not been made. If Funcha! B.V. proceeds to collection, the related extrajudicial costs are at the expense of the client, provided the amount thereof is stated in the notice. Funcha! B.V. is entitled to charge the amount in accordance with the Decree on compensation for extrajudicial collection costs.
10.3 If the client does not pay, or does not timely pay the amount that Funcha! B.V. is owed in accordance with the agreement, or if Funcha! B.V. has valid reasons to believe that the client will not pay Funcha! B.V. will not pay or will not pay in time, Funcha! B.V. is entitled to demand sufficient security from the client.
10.4 If the client does not fulfil any of their obligations, Funcha! B.V. is entitled to suspend the work until the moment the client has fulfilled this obligation, or to terminate the work in an unfinished state, provided Funcha! B.V. has given the client written notice of these consequences of non-compliance in writing or electronically. The provisions of the previous sentence do not affect the right of Funcha! B.V. to compensation for damage, costs and interest.
10.5 If the client is declared bankrupt, or applies for suspension of payment, or if a legal claim is levied on it by a third party, unless this claim is lifted within one month, whether or not against a guarantee, Funcha! B.V. is entitled to suspend the work without further notice, or to terminate the work in an unfinished state. 6. If this article involves suspension or termination in an unfinished state, the provisions of Article 14, paragraph 5, shall apply.
Article 11 – Failure of Funcha! B.V.
11.1 If Funcha! B.V. fails to fulfil its obligations with regard to the commencement or continuation of the work and the client wishes to give notice in connection therewith, the client give notice to Funcha! B.V. in writing or electronically to start or continue the work as soon as possible.
11.2 The client is authorised to have the work carried out by a third party or to continue it, if Funcha! B.V. remains in default on expiry of the term stated in the notice provided the seriousness of the shortcoming justifies this and on condition that the client has stated this in the notice. In that case, the client is entitled to compensation for the damage and costs resulting from the default of Funcha! B.V..
11.3 The client shall ensure that the costs resulting from the application of the previous paragraph for Funcha! B.V. remain as low as possible, only if quality can be guaranteed.
Article 12 – Suspension of payment
If the work performed does not comply with the agreement, the client has the right to suspend payment in full or in part. The amount involved in the suspension must be in reasonable proportion to the shortcoming. The client reports the suspension and the reason for this in writing or electronically to Funcha! B.V..
Article 13 – Suspension, termination of work in unfinished state and termination of the agreement
13.1 The client is entitled to suspend the execution of the work in whole or in part. Provisions that Funcha! B.V. must take as a result of the suspension, and damage that Funcha! B.V. suffers as a result of the suspension, are reimbursed to Funcha! B.V..
13.2 If damage to the work occurs during the suspension, this will not be the responsibility of Funcha! B.V., provided it has previously informed the client in writing or electronically of this consequence of the suspension.
13.3 If the suspension lasts longer than 14 days, Funcha! B.V. can also claim that a proportional payment is made for the part of the work that has been carried out. In doing so, account is taken of work materials supplied, not yet processed, but which have already been paid for by Funcha! B.V..
13.4 If the suspension of the work lasts longer than a month, Funcha! B.V. is authorized to terminate the work in an unfinished state. In that case, payment must be made in accordance with the following paragraph.
13.5 The client is entitled at all times to terminate the agreement in whole or in part. In that case, Funcha! B.V. is entitled to the contract price, plus the costs that it has had to incur as a result of the non-completion and less the costs saved by the termination. Funcha! B.V. is entitled to charge 10% of the value of the uncontracted part of the work instead of the previous claim. Funcha! B.V. will send the client a detailed final statement of what the client owes as a result of the cancellation.
Article 14 – Liability of the client
14.1 The client bears the responsibility for the accuracy of the information provided by or on behalf of them.
14.2 Differences between the current condition of existing buildings, works and sites on the one hand, and the condition that Funcha! B.V. could reasonably have expected, will entitle Funcha! B.V. to compensation for the ensuing costs.
14.3 If after the conclusion of the agreement it appears that the building site is contaminated or the building materials coming from the work are contaminated, the client is liable for the consequences resulting therefrom for the execution of the work.
14.4 The client bears the responsibility for the constructions and working methods prescribed by or on behalf of them, including the influence exerted on them by the soil conditions, as well as for the orders and instructions issued by them or on their behalf.
14.5 If building materials or auxiliary materials that the client has made available or are prescribed by them are unsuitable or defective, the consequences shall be the responsibility of the client.
14.6 If the client has ordained a supplier who fails to do deliver, or does not do so on time or improperly, the costs and consequences of this will be charged to the client.
14.7 The client is liable for damage to the work and the damage and delay that Funcha! B.V. suffers as a result of work carried out or deliveries performed by the client or on its instructions by third parties.
14.8 The consequences of compliance with statutory regulations or governmental orders that enter into force after the date of the offer shall be borne by the client, unless it can reasonably be assumed that Funcha! B.V. had already foreseen or could have foreseen those consequences on the day of the offer.
14.9 Unclassified or used Personal Protective Equipment (PPE) cannot be taken back by Funcha! B.V. or the relevant supplier.
Article 15 – Liability of Funcha! B.V.
15.1 Design liability
15.1.1 In the event of shortcomings in the design, Funcha! B.V. is only liable for this insofar as these shortcomings can be attributed to them.
15.1.2 The liability of Funcha! B.V. pursuant to the previous paragraph is limited to the amount agreed for the execution of the design work. If no amount has been agreed, the liability of Funcha! B.V. is limited to 8% of the contract price.
15.1.3 The legal claim in respect of an attributable shortcoming is inadmissible if it is instituted after one year after the expiration of the maintenance period.
15.2 Liability during the execution of the work
15.2.1 The work and the implementation thereof are the responsibility of Funcha! B.V. with effect from the time from start to the day on which the work was completed or deemed to be completed.
Without prejudice to the liability of the parties by virtue of this agreement or the law, the contractor is liable for damage to the works, unless such damage is caused by extraordinary circumstances for which the contractor – considering the nature of the work – did not have to take corresponding measures regarding any negative consequences and, as such, it would be unfair to hold them responsible for the damage.
15.2.3 Funcha! B.V. is liable for damage to other works and property of the client insofar as it is caused by the execution of the work and is due to negligence, carelessness or incorrect actions of Funcha! B.V. and its personnel.
15.2.4 Funcha! B.V. indemnifies the client against claims by third parties for compensation of damage, insofar as this has been caused by the execution of the work and is due to negligence, carelessness or incorrect actions of Funcha! B.V. and its personnel.
15.2.5 Funcha! B.V. excludes all liability for damage or consequential damage caused by equipment from suppliers
15.3 Liability after completion
15.3.1 After the day on which the work is completed, Funcha! B.V. is no longer liable for shortcomings in the work.
15.3.2 The provisions of the second paragraph shall be an exception if there is a defect:
1. that occurred in the maintenance period, which could reasonably not have been recognised by the client upon completion and of which Funcha! B.V. makes it plausible that the defect must be attributed with a high degree of probability to a circumstance that can be attributed to the client;
2. that came to light at the end of the maintenance period, which could reasonably not have been recognised by the client upon completion and of which the client can make it plausible that the defect must be attributed with a high degree of probability to a circumstance that can be attributed to Funcha! B.V..
15.3.3 The legal claim in respect of the defect referred to in paragraph 2 under a is inadmissible if it is instituted after one year after the expiry of the maintenance period.
15.3.4 The legal claim in respect of the defect referred to in paragraph 2 under b shall not be admissible if it is instituted after one year after the expiry of the maintenance period. In the event that the defect referred to in paragraph 2 under b must, however, be regarded as a serious defect, the legal claim will be inadmissible if it is instituted after one year after the expiry of the maintenance period. A defect can only be regarded as a serious defect if the work has collapsed, or is in danger of collapsing, or is inadequate or inadequate for the purpose for which it is intended according to the agreement and this can only be remedied or prevented by making very expensive provisions.
15.3.5 Funcha! B.V. excludes all liability for damage or consequential damage caused by equipment from suppliers.
15.4 Other provisions
15.4.1 In the cases as provided for in articles 15.1 to 15.3, the client is obliged to notify Funcha! B.V. of the defect within a reasonable period after discovery and to give Funcha! B.V. the opportunity within a reasonable period of time for it to repair/remedy imputable shortcomings and/or defects for which Funcha! B.V. is liable.
15.4.2 If the costs of repair for a defect or the removal of a shortcoming for which Funcha! B.V. is liable are not in reasonable proportion to the interest of the client in the event of repair, Funcha! B.V. may, in lieu of repair, suffice with the payment of reasonable compensation to the client.
15.4.3 The limitations of liability arising from articles 15.1 to 15.3 do not apply if the damage is the result of intent or gross negligence of Funcha! B.V..
Article 16 – Disputes
16.1 Disputes, which belong to the jurisdiction of the (sub-district) court, must be submitted to the (sub-district) court in Utrecht for settlement.
16.2 Dutch law applies to the agreement of contracting work or to the agreements between the client and Funcha! B.V. which are a consequence thereof.