In these general terms and conditions, the terms below shall be defined as follows:
1.1 Yourtech: Yourtech BV, having its registered office in Amersfoort (the Netherlands).
1.2 Client: Every natural person or legal entity which commissions Yourtech to provide it with products and/or services, or with which Yourtech enters into an agreement, or with which Yourtech is engaged in discussions or negotiations regarding the conclusion of an agreement.
1.3 Agreement: every agreement formed between Yourtech and the client, every amendment or supplement thereto, as well as all (legal) acts involved in the preparation and performance of this agreement.
1.4 Products: all products, including documentation, testing equipment and all other results of the services provided by Yourtech which are the object of an agreement.
1.5 Services: all work, in whatever form, that Yourtech carries out for or on behalf of a client.
1.6 Order: Every order provided by the client, in whatever form.
2.1 These terms and conditions of sale and delivery apply to all Yourtech offers, deliveries, services and/or sales agreements.
2.2 Yourtech explicitly rejects the applicability of general terms and conditions which the client declares to be applicable, with the exception of cases in which Yourtech explicitly accepts the applicability of these in writing.
2.3 If Yourtech and the client agree special conditions that deviate from these general terms and conditions, these special conditions will only apply to the order for which these conditions were agreed between the parties, and these special conditions do not have an effect on new agreements between the parties, unless the parties explicitly agree this in writing.
3.1 Offers from Yourtech are free from obligation (unless otherwise agreed), and may be withdrawn or amended until immediately after their acceptance, unless the offer stipulates an explicit term.
3.2 An offer from Yourtech is not binding for Yourtech, and only applies as an invitation to place an order.
3.3 Offers and price quotations are based on the fulfilment of the order under normal circumstances and during regular working hours.
3.4 If a client provides Yourtech with information, drawings and so forth, Yourtech is entitled to assume the accuracy of these, and will base its offers on this information.
3.5 Offers are based on the latest scientific findings and technological developments at the time of the offer.
3.6 Yourtech takes the specific company structure and situation of the client into account insofar as this is explicitly agreed and the client has provided Yourtech with all the relevant information and data in writing.
3.7 Offers from Yourtech are valid for a period of 10 working days, unless agreed otherwise.
3.8 Offers or commitments made by Yourtech employees are only binding if these have been confirmed in writing by Yourtech.
4.1 An agreement between the parties is formed either in writing (including email) or when Yourtech has started carrying out acts in performance of the agreement.
4.2 Yourtech's records have full evidential value with respect to the order, unless the client is able to prove via other means that Yourtech has accepted the client's order in its entirety and unconditionally.
4.3 Yourtech's written acceptance or order confirmation serves as conclusive evidence, or if this is lacking, the invoice, with the exception of any inaccuracies for which the client must provide written notice within eight days of the date of shipment.
4.4 Deviations to agreements are not binding until Yourtech has confirmed these in writing.
4.5 In granting the order, the client indicates its agreement with the materials specifications as contained in the quotation or in Yourtech's order confirmation.
4.6 An agreement that the client has concluded with a Yourtech representative is only legally valid if and to the extent the representative has written authorization attesting to this fact. These authorization documents are available for inspection at Yourtech's office.
5.1 The prices and conditions agreed in writing apply to the orders accepted by Yourtech, in the absence of these of which the prices and conditions that are demonstrably effective on the date of delivery will apply
5.2 Prices apply on an ex-works basis, unless explicitly agreed otherwise in writing, and therefore do not include transport and/or shipment, packaging, insurance, any government duties or taxes and so forth.
5.3 All prices stated in writing and documentation by Yourtech are in euros and exclusive of VAT.
5.4 Yourtech has the right to:
5.5 If, as a result of modifications to the order or the conditions for its fulfilment, or specific preferences of the client with regard to the time of delivery and/or the materials to be supplied by Yourtech, additional costs, including wages and/or transport costs, are incurred, these will be invoiced to the client.
5.6 The following are, at any rate, not included in the agreed price:
6.1 All payments are due within 30 days of the invoice date, free from deductions.
6.2 The client's right to offset its claim against Yourtech is excluded unless Yourtech has gone into liquidation.
6.3 Yourtech is entitled at all times to demand cash payment, prepayment or security for the payment. Unless otherwise agreed in writing, payments must be executed in the following instalments:
6.4 If the client fails to satisfy its obligation to pay or furnish security, Yourtech is entitled to suspend the performance of its obligations under this agreement and all other agreements concluded with the client, without prior notice of default, and without prejudice to its other authorities under the law.
6.5 The full amount due is immediately payable if:
6.6 If the client fails to satisfy its payment obligations, it is in default by operation of law, and Yourtech is entitled to charge default interest in accordance with the statutory rate of interest, plus an additional 2%, starting on the invoice due date.
6.7 All the costs associated with the collection of amounts owed by the client which have not been paid on time are at the client's expense. The extrajudicial costs are at least 15% of the amount due, excluding VAT, subject to a minimum of ?500 and are immediately due and payable at the time the claim is submitted for collection.
6.8 If the court finds in Yourtech's favor in legal proceedings, all the costs that it has incurred in connection with these proceedings will be at the client's expense.
7.1 Reported delivery times may never be considered to be firm deadlines, unless otherwise explicitly agreed in writing. In the event of a late delivery, the client must provide Yourtech with written notice of default.
7.2 The applicable delivery time is that which is provided in the written agreement, order or order confirmation. Yourtech will never be in default if it has not been provided with all the information and drawings, or all the formalities have not been observed which are necessary for the fulfilment of the order, nor if Yourtech has not received the agreed advance payment.
7.3 In the event of a late delivery, the client will not be entitled to any compensation for damage, full or partial termination of the agreement, or any right of suspension.
7.4 In the case of additional deliveries or work to be provided at the client's request that go beyond the scope of the original order, Yourtech is no longer required to adhere to the original delivery time(s).
8.1 The terms of delivery are ex-works or from a location explicitly agreed by the parties in writing.
8.2 The risk of the goods to be delivered will pass to the client immediately upon delivery. The delivery of goods shall be deemed to have taken place once Yourtech notifies the client that the goods are ready for shipment. Goods are considered to be delivered regardless of obligations Yourtech has with respect to installation and/or assembly.
8.3 Deliveries under terms other than ex-works as well as return shipments are at the client's risk and expense, and the client is responsible for insuring these to cover transport risk.
8.4 A delivery (in operational condition) applies if, through no fault of Yourtech's, any spare part or work provided by third parties that does/do not affect the proper functioning of that which has been agreed, have not been delivered or completed.
8.5 The information and specifications provided by Yourtech are indicative and only apply to the extent the client closely follows Yourtech's instructions and guidelines.
8.6 If delivery of the goods is not taken, or is not taken in time or in the proper manner, the client will be in default without prior notice being required. In this case, Yourtech will be entitled to store the goods at the client's risk and expense, or to sell these to a third party. The client will owe the purchase price plus interest and all other costs, however in the aforementioned case, less the net proceeds from the sale to the third party.
8.7 Without prejudice to the provisions in Article 5.2, products will be provided with the packaging in which the goods are usually sold, if necessary and at the sole discretion of Yourtech, unless explicitly agreed otherwise in writing. Yourtech will not accept returns of this packaging.
8.8 Yourtech has the right to alter the construction, nature and composition of applied materials and goods, and has the right to do so without reporting this to the client, to the extent the value-determining factors, and/or the agreed specifications, remain the same.
8.9 Unless otherwise agreed in writing, the client bears the risk for goods delivered to Yourtech for processing or treatment, repairs, or inspection.
8.10 Incoterms 2000, published by the International Chamber of Commerce, apply for the interpretation of terms of trade.
9.1 The client will be invoiced for costs and work carried out if:
9.2 Yourtech is authorised to invoice the additional work or activities separately, also in cases in which a written order is not provided for work and/or the price of this has not been agreed in advance.
10.1 Yourtech carefully inspects all goods prior to delivery. The client is also obliged to inspect and approve all goods at the time of delivery, and all work upon its completion.
10.2 If the client does not submit a written claim within 14 days of the completion of work or the delivery or transfer of goods, stating reasons, the delivery will be considered to be accepted unconditionally.
10.3 Defects which may not reasonably be observed within the terms referred to in 10.2 must be reported immediately upon their detection and within the valid period of guarantee.
10.4 If, however, testing or inspection by the client has been performed at Yourtech's premises or the agreed delivery location, any complaints or claims must be submitted at the time of this inspection or testing.
10.5 If the client has prescribed materials of a specific quality or which must be accompanied by certificates or comply with other standards, Yourtech will offer the client the opportunity to inspect these materials at Yourtech's premises or at the work site immediately after Yourtech has notified the client that the materials are ready for inspection. Article 10.4 shall apply by analogy.
10.6 Minor differences will not constitute grounds for the client to submit claims, request compensation for damage, or request the cancellation of the order.
10.7 After the discovery of any defect, the client is obliged to immediately cease the use, processing, treatment or installation of the relevant items, and to provide Yourtech with every opportunity to investigate the claim, including providing Yourtech with the opportunity to investigate (or have this done) the circumstances involved in the processing, treatment, installation and/or use, on location.
10.8 If the client desires any additional special investigative activities, the client must provide notification of the relevant standards and specifications. Any investigative activities must be carried out in the presence of the client, at its request. All the costs associated with these investigative activities are for the client's account.
10.9 The client is fully liable for compliance with statutory and other provisions of the competent authorities in the course of the use, processing or consumption of the goods delivered, and every liability on Yourtech's part will lapse for damage that occurs after these actions.
10.10 Return shipments will only be accepted by Yourtech after it has provided written approval for the complaint received from the client in writing, accompanied by reasons. The client is required to follow further instructions from Yourtech for return shipments.
11.1 Yourtech will retain ownership of all the goods sold or delivered until the client has fully satisfied all its obligations under the agreement or a related agreement, and the client will bear the risk and expense for these goods.
11.2 The client does not have the right to dispose of or encumber the goods in any manner until it has satisfied all its obligations to Yourtech.
11.3 If the client fails to satisfy all its obligations, Yourtech has the right to demand the surrender of its property, without prior notice of default being required. Yourtech and its employees have the right to enter the client's premises and to take actual possession of the goods delivered.
11.4 Whether or not this is in response to a request from Yourtech, the client will provide all the information relating to the goods belonging in whole or in part to Yourtech, immediately and in writing, particularly that information relating to the rights of third parties to these goods.
11.5 If Yourtech is unable to invoke its retention of title because the delivered goods have been merged, distorted or acquired by accession, the client is required to pledge the newly formed goods to Yourtech.
11.6 If the client fails to satisfy the obligations referred to under 11.4 and 11.5, the client will owe a fine of 10% of the as-yet unpaid portion of the agreed price.
12.1 All the advice, calculations, notifications and statements provided by Yourtech regarding capacity, results and/or expected performance of the goods to be delivered or work to be carried out are completely free from obligation and are only supplied by way of non-binding information. Only that information reported in the written agreement or order confirmation is binding.
12.2 Cost estimates, plans, catalogues, photographs/images, drawings, sizes and weight measurements or other documents supplied with offers or deliveries prepared, created or made available by Yourtech, as well as resources such as models, templates, stamps or seals, dies and tools remain the property of Yourtech at all times, even if the client has been invoiced for the production costs, and must be returned to Yourtech at its first request. Violation of this provision will subject the client to a fine payable to Yourtech of ?1000 per day. This fine may also be demanded in addition to compensation for damage under the law.
12.3 Yourtech is not liable for the violation of patents, licences or other thirdparty rights resulting from the use of information which has been provided to Yourtech by or on behalf of the client in the fulfilment of the order.
12.4 If Yourtech refers to technical, safety, quality or other guidelines in an agreement concluded with the client or in the order confirmation that relates to the products, the client will be deemed to be familiar with and observe them.
12.5 Unless agreed otherwise, Yourtech retains the copyrights and all industrial property rights to the designs, images, drawings, (test) models, software, etc. contained in the offers it provides.
12.6 The items referred to in this article may not be copied or reproduced without explicit permission from Yourtech, nor may they be supplied to third parties, whether or not this is for reuse, for inspection or submission. Violation of this provision will subject the client to a fine payable to Yourtech of ?25,000.00. This fine may also be demanded in addition to compensation for damage under the law.
13.1 If the assembly of the delivered goods has been agreed, the price will include assembly and the delivery of the goods in operational order at the agreed location. The price will be increased by any additional wage costs for the technician(s). Any additional costs may also be invoiced to the client, specifically travel costs, costs of accommodation and living expenses for personnel, as well as the costs of any assembly activities that must be carried out outside of normal working hours.
13.2 The provisions of these general terms and conditions apply in full force to assembly and/or installation, particularly with regard to price, delivery, risk and guarantee.
13.3 The client must ensure, at its own risk and expense, that all the necessary facilities, services and conditions required for the assembly and installation work to be performed by Yourtech are present and/or available, in a timely and proper manner.
13.4 The client must ensure that work to be carried out by third parties that is not part of the work agreed with Yourtech is carried out in a timely manner such that Yourtech will not experience any delays as a result.
14.1 Yourtech offers a six-month guarantee from the date of delivery for material and manufacturing defects.
14.2 The guarantee under 14.1 stipulates that Yourtech will only repair defects, accept partial or complete returns, or replace all or part of products delivered based exclusively on its evaluation, and at its expense.
14.3 All other costs are at the client's expense, including transport costs, travel expenses and costs of dismantling and assembly. During the performance of the guarantee obligation, products remain entirely at the client's risk.
14.4 If Yourtech only processes or repairs goods, the guarantee only applies to the soundness of the execution of the work.
14.5 Yourtech will not provide a guarantee in the following cases:
14.6 Every claim the client submits under the guarantee will lapse if:
14.7 Yourtech offers the same guarantee on components it has not manufactured as the one offered to Yourtech by its suppliers.
14.8 Guarantees are not provided for goods, materials, manufacturing methods and designs (including hardware and software) which are prescribed by the client, nor for any defects that are caused to other materials and goods, directly or indirectly, as a result.
14.9 Guarantees are not provided for defects or for the failure of delivered goods or installations to function properly which are a consequence of the agreed technology and technological concepts.
15.1 Yourtech does not accept any liability for the consequences of the application and/or use of the goods it has delivered, damage arising directly or indirectly from the storage of the goods it has delivered, even if it has retained the title to these goods, damage due to exceeding the delivery terms as a result of a change in circumstances, or damage resulting from deficient information or materials from the buyer.
15.2 Yourtech is not liable if a breach is the result of force majeure, which includes circumstances that prevent the satisfaction of the obligation and which may not be attributed to Yourtech.
15.3 The exclusion for liability set out in this article does not apply to the extent damage is the result of gross negligence or intent on the part of Yourtech or its management employees. Without prejudice to that stipulated in the previous sentence, Yourtech is not liable for damage resulting from gross negligence or intent on the part of its (nonmanagement level) employees or other (third) parties.
15.4 Yourtech will never be obliged to compensate damage in an amount that exceeds the invoice value of the order or work from which the damage has ensued, or the amounts of claims its insurers will pay as a result of the event causing the damage, in the event the invoice amount is higher.
15.5 Yourtech may never be held liable for trading or consequential damage, neither directly nor indirectly, by whatever name, with regard to the goods it delivers and/or installs or assembles, or the services it provides.
16.1 The client indemnifies Yourtech from all third-party claims based on product liability which occur after delivery by Yourtech.
16.2 The client is bound to notify Yourtech of any claims within three working days of the date the client has received a claim pursuant to the statutory provision on product liability. Where possible, Yourtech will grant its cooperation in processing the claim for liability.
17.1 Yourtech undertakes to deliver high-quality products and/or services to the client.
17.2 Yourtech is obliged to fulfil the agreed order, provided this is not in violation of Yourtech's general terms and conditions or in violation of the laws and regulations of the Netherlands.
17.3 Yourtech undertakes to notify the client about any delays in the execution of orders and/or the delivery of products as soon as possible. Yourtech undertakes to train its employees according to the valid standards and/or legislation, provided this applies.
17.4 Yourtech undertakes to supply its employees with reliable and highquality tools and equipment. These are standard tools.
17.5 Yourtech undertakes to insure itself and its employees via the minimum required business insurance coverage.
18.1 The client is obliged to notify Yourtech and any of its personnel directly involved immediately if any of the structures, drawings, methods and instructions, or the building materials, goods or resources that have originated from Yourtech or which the client has prescribed or made available exhibit defects.
18.2 The client must ensure that the work to be performed by Yourtech at a location other than Yourtech's factories may be allowed to start and continue unimpeded and without interference, starting from the time Yourtech's personnel arrive.
18.3 The client will ensure and bear responsibility for the presence of technical, spatial and communications facilities that are necessary for the performance of the work, for proper access routes, transport facilities, the required surfaces, auxiliary materials and business resources, energy, water, lighting, and all other equipment and supplies. These facilities will be made available by the client at no charge.
18.4 The client will ensure that the areas in which work is being carried out are clean, well-lit, draught-proof and glazed, and that the connection points for welding activities are free from dust, moisture and grease.
18.5 The client is liable for all damage to and loss of goods, materials, machinery and tools during the period of storage at the work site, regardless of the cause.
18.6 The client is bound to take any and all measures required in connection with the safety of Yourtech personnel. The client will ensure that where necessary, assistance will be provided and that it will intervene if necessary within the context of overnight accommodation for Yourtech personnel.
18.7 The client will ensure that a sufficient supply of power is available if (high-frequency) welding equipment is being used and/or that the draw on power does not lead to failures, particularly computer failures, within the client's company. Yourtech does not accept any liability whatsoever in these situations.
18.8 If Yourtech is unable to start the work as a result of the client's actions, or is unable to continue the work, Yourtech is entitled to suspend the performance of the agreement and has the right to charge the client the additional costs involved at the standard rates.
All Yourtech's employees have had the training necessary to ensure they deliver high-quality work. All Yourtech's employees, to the extent it applies to their position, are in possession of the necessary safety certificates (VCA) as required by Dutch regulations. The client is prohibited from hiring Yourtech employees within one year of the date the employee in question has left Yourtech's employ, or to engage the employee via a third party (regardless of the initiative taken), subject to a fine of ?10,000 per violation, and ?1000 per day or portion thereof that the violation continues, without prejudice to Yourtech's right to demand compensation for the actual loss incurred.
Work is carried out according to the valid and/or agreed rates and within Yourtech's normal working hours, unless agreed otherwise. Monday-Friday 8:00 a.m. to 4:45 p.m. Closed Saturday, Sunday and holidays.
The client is obliged to indemnify Yourtech against all costs and damage which Yourtech may incur as a result of claims third parties initiate against Yourtech involving any act for which liability against the client is excluded in these terms and conditions.
All the clauses in these terms and conditions are also stipulated on behalf of all those parties engaged by Yourtech in the management and execution of a project.
23.1 Cancellation by the client is only possible with Yourtech's consent.
23.2 If Yourtech consents to the cancellation, the client will owe compensation in the amount of 15% of the agreed price unless the costs incurred plus lost profit exceed this amount, in which case the actual costs will be owed. Costs incurred include materials and raw materials, whether or not these have been forward purchased, processed or converted, and at the price paid by Yourtech including wage costs.
23.3 All claims or rights of the client with respect to that previously presented by Yourtech will lapse in the event of a cancellation.
23.4 In the event of a cancellation, the client indemnifies Yourtech against claims from third parties resulting from the cancellation.
24.1 If the client remains in default in terms of timely payments or in fulfilling its other obligations to Yourtech, Yourtech is authorised to consider the agreement terminated, without being required to provide notice of default, without prejudice to Yourtech's right to full compensation for costs, damage, interest, lost profits and all other rights under the law.
24.2 Yourtech will also have the right to terminate the agreement if Yourtech determines that the client's creditworthiness is reduced, or that the client has petitioned for a temporary suspension of payments, is declared insolvent, or in the event of the cessation or liquidation of the client's company.
24.3 The damage that has been or will be incurred as referred to in the aforementioned provisions is at least 10% of the agreed price, and Yourtech is not required to demonstrate that this damage has been or will be incurred.
24.4 In the event of termination, any credit Yourtech has granted to the client will be immediately due and payable without further notice of default being required.
25.1 In the event of force majeure, Yourtech is authorised to suspend all or part of its delivery obligations, or to consider the agreement to be terminated without judicial intervention and without being required to pay any compensation for damage, costs and interests to the client.
25.2 Force majeure on Yourtech's part includes, in any case, the following: a. damage resulting from natural disasters and/or storm damage; b. war, threat of war and/or every form of armed conflict or threat of such here in the Netherlands and/or other countries which would impede the delivery of products or raw materials; c. strikes, forced shut-downs, uprisings and every other form of disruption and/or hindrance caused by third parties which would impede the delivery of products or raw materials; d. loss or damage of goods during transport; e. illness of one or more employees, the replacement of whom would be detrimental; f. legislative or administrative government measures which would impede deliveries, including import and export bans; g. a prohibition on or hindrance of deliveries imposed on Yourtech by organisations, authorities, groups or contractual partnerships with which Yourtech is affiliated or of which it forms a part; h. defects and/or failures in means of transport, production equipment or energy supply; i. fire and other accidents at Yourtech's premises; j. the failure by suppliers in the Netherlands and/or other countries to deliver to Yourtech or deliver in time; k. delays in the Netherlands and/or other countries in the supply of goods, raw materials and/or energy.
25.3 If Yourtech had already partially satisfied its obligations at the time the force majeure situation arose, it is entitled to invoice this portion of the delivery and the client is then obliged to pay this invoice. This only applies if the goods already delivered have an independent value.
26.1 If Yourtech provides consultancy services, it will only act as an authorised representative of the client if and insofar as the client has provided Yourtech with written authorisation for this purpose.
26.2 If the client has appointed Yourtech as an authorised representative, it will not issue orders and instructions to third parties other than Yourtech that carry out or provide deliveries for the object or project to which the order relates, or supervise the fulfilment.
26.3 If Yourtech has granted an order without being authorised for this purpose in accordance with this article, this exceeding of its powers will be at Yourtech's risk and expense, except in cases where this excess is the result of taking immediate and necessary measures, about which Yourtech was unable to consult with the client and to the extent the fulfilment of the unauthorised order would result in an enrichment of the client, the costs of which, also with a view to the benefit of the activities given all the relevant facts and circumstances, may not reasonably be charged to the consulting firm.
27.1 The client is obliged to take out and keep current the standard insurance policies. The insurance must also encompass Yourtech's interests including the provision involving deliveries to which the client does not yet hold title. In the event of an emergency, the client is required to compensate Yourtech for this interest.
27.2 The client will bear the risk and expense of taking out insurance.
27.3 Yourtech will never be liable for damage that is normally covered by insurance.
28.1 During and after the performance of the agreement, the client, its employees and third parties are prohibited from making announcements to third parties or disclosing information which the client is or should be aware can be detrimental to any of Yourtech's interests.
28.2 Each party will take all reasonable precautions to ensure that secrecy is observed in respect of any confidential information received from the other party.
28.3 In the event of the violation of the duty of confidentiality provided for in this article, the client will owe Yourtech a fine of ?10,000 per violation or per day that the violation continues.
28.4 The client is obliged to sign a nondisclosure agreement drawn up by Yourtech at Yourtech's first request.
If one of the provisions in these terms and conditions is declared to be void, this will not affect the validity of the other provisions in these general terms and conditions.
30.1 All the agreements to which these Yourtech terms and conditions apply are governed by the laws of the Netherlands.
30.2 The applicability of the Vienna Sales Convention (CISG) is excluded unless the parties explicitly agree otherwise.
All disputes between the parties will be adjudicated in the first instance by the competent court in the district in which the relevant Yourtech company with which an agreement has been concluded has its office, without prejudice to Yourtech's right to institute legal proceedings against the client in the district in which the client has its registered office.
These terms and conditions take effect on 1 April 2007. All previous versions of the Yourtech B.V. general terms and conditions will cease to apply as of this date.
Yourtech is authorised to amend these terms and conditions. These amendments will take effect on a date to be announced by Yourtech, in which case Yourtech will send the client the amended terms and conditions in a timely manner. If an effective date is not reported for the amendment, the changes affecting the client will take effect as soon as the client has been notified of these, or as soon as the amendment has been filed with the Chamber of Commerce and Industry in Amersfoort.
Yourtech's terms and conditions of sale and delivery were filed in Dutch with the Chamber of Commerce in Amersfoort on 1 February 2009 under number 32077138.