Our terms and conditions

Article 1: General

  1. These General Terms and Conditions apply to all offers, deliveries, orders and agreements made by and with Vivara Pro, hereinafter referred to as the user. They also apply to all commitments arising from agreements subsequently concluded between the parties.
  2. The person who by signing a writing or otherwise accepted the validity of these General Terms and Conditions as well as his representative(s), agent(s), assignee(s) and heirs, shall be referred to hereinafter as the other party.
  3. Application of general terms and conditions invoked by the other party is expressly rejected unless they have been explicitly confirmed in writing in advance. By merely issuing an order, placing an order and/or taking delivery of delivered goods, the other party also accepts these General Terms and Conditions.
  4. If any part of these general terms and conditions is void or destroyed, these general terms and conditions shall remain in force for the remainder, insofar as, in view of their content and scope, they are not inextricably linked to the void or destroyed part.
  5. If the scope of an invalid or annulled condition corresponds to that of another condition which is to be regarded as valid to such an extent that it must be assumed that this other condition would have been agreed upon if the former had been waived because of its invalidity, then it shall have the effect of that other condition.

Article 2: Offers and agreements.

  1. Offers of the user, in any form, including any attached attachments, are always without obligation and expire three months from the date of the offer, unless expressly agreed otherwise in writing.
  2. The user shall never be bound to execute an order that has not yet been confirmed by it in writing by means of a sales confirmation.
  3. The user shall never be bound to more than that which has been confirmed by it in writing in its confirmation of sale.
  4. As long as the assignment/order has not been refused by the user, the other party remains bound by it.
  5. If an offer contains a deadline for acceptance, the user has the right to revoke its offer within two working days of receiving the acceptance.
  6. The user cannot be held to its offers if the other party can reasonably understand that the offers, or any part thereof, contain an obvious mistake or slip of the pen.
  7. The written sales confirmation shall serve as full proof of the agreement, unless the other party has objected to its contents, in writing, within 7 days of receipt of the sales confirmation.

Article 3: Prices

  1. All prices are as confirmed in writing in the sales confirmation. Prices do not include VAT unless otherwise indicated in writing.
  2. The sales confirmation shall serve as complete proof with respect to the agreed price. Exceptions to this are: offsets of more and/or less work, offsetting the change in costs under paragraph 3.
  3. The user is authorized in the event of changes in factors determining the price of the goods to be delivered (including the cost of wages and materials exchange rate changes, changes in sales tax, unforeseen price increases from suppliers or any increases or changes whatsoever) to unilaterally increase the agreed price proportionally even if an order has been confirmed in writing and/or a contract has already been concluded.

Article 4: Delivery

  1. Delivery of the goods by the user takes place ex warehouse, unless the parties have explicitly agreed on any other place of delivery, which place of delivery is then stated on the assignment/order.
  2. The other party is obliged to take immediate possession of the goods at the agreed time. The goods are at the risk of the other party from this delivery.
  3. The expiration of the period for delivery by the user shall not have the effect of triggering default without notice of default, nor can the other party, by means of a notice of default, assert rights to suspension, dissolution or compensation in respect of the expiration of the period for delivery by the user.
  4. Non-delivery or late delivery by one of the user’s suppliers constitutes force majeure for the user and can never lead to compensation by the user to the other party or third parties.
  5. The user is authorized to make partial deliveries.

Article 5: Retention of title

  1. The user shall retain the right of ownership of all items it has delivered to the other party until the purchase price for all such items has been paid in full. If the user, within the framework of this sales agreement and for the benefit of the other party, performs work to be reimbursed, the aforementioned reserved property shall apply until the other party has also paid these claims of the user in full. The reserved property shall also apply to the claims, which the user may obtain against the other party due to failure of the other party to fulfil one or more of its obligations towards it.
  2. As long as the ownership of the delivered goods has not been transferred to the other party, it may not pledge the goods or grant any right to them to a third party, subject to the provisions of paragraph 5.
  3. The other party is obliged to keep the goods delivered under retention of title with due care and as recognizable property of the user. The other party is obliged to insure the goods against fire, explosion and water damage as well as theft for the duration of the reserved property and to make the policies of these insurances available to the user for inspection on first demand. All claims of the other party against the insurers on account of the aforementioned insurances shall be pledged by the other party to the user as soon as the user expresses a wish to this effect, in the manner indicated in article 3.239 of the Civil Code, as additional security for the user’s claims against the other party.
  4. If the other party fails to meet its payment obligations to the user or the user has good reason to believe that it will fail to meet those obligations, the user shall be entitled to take back the goods delivered under retention of title. The user shall in any case and among other things have good reason to fear that the other party will fail to fulfill its payment obligations if an attachment is levied on the other party. The other party authorizes the user to enter the place where the delivered goods are located. After repossession, the other party will be credited for the market value, which in no case can be higher than the original purchase price, less the costs due on repossession.
  5. The other party shall be permitted to sell and transfer the goods delivered under retention of title to third parties in the ordinary course of its business. When selling on credit, the other party is obliged to stipulate a retention of title from its buyers on the basis of the provisions of this article.

Article 6: Unforeseen circumstances

  1. If during the work performed by the user, due to the actions or negligence of the other party, a situation arises that endangers the personal safety of employees of the user in any way, the work will be stopped until personal safety can be guaranteed again.
  2. The other party shall be liable for all damages and expenses incurred as a result.
  3. If the above situation results in delay, the user shall have the right to freeze the order until further notice in order to keep other orders on schedule. In doing so, the user shall not be liable for any damage incurred by the client as a result of suspending the performance of the work.
  4. The costs of eliminating the above situation shall be borne by the other party.

Article 7: More and less work

  1. The user is entitled to charge additional work on the total amount of the offer. Settlement of additional work shall be made at the last installment of payment. Additional work will only be performed in consultation with the other party.
  2. Additional work shall include everything that is delivered and/or installed by the user either at the request of the other party or the management, or at the order of third parties, or as a result of new or changed regulations, in excess of the quantities and/or types of materials to be processed expressly laid down in the agreement, or in excess of the work described in the agreement.

Article 8: Execution by third parties

  1. The user may assign part or all of the work to third parties under conditions to be set by it to such third parties.
  2. Execution by third parties may be initiated by the user without informing the client prior to the work.
  3. If the user cooperates with one or more others or engages one or more others at the request of the other party, the user shall not be liable for the part of the assignment performed by such third party or parties.

Article 9: Completion

  1. The user shall endeavor to deliver the work within the agreed delivery period except in cases of force majeure or unforeseen circumstances. The user does not use and accept fatal deadlines unless otherwise agreed upon in the quotation.
  2. Until the moment of the last payment to the user, it is not allowed to make research results, research reports and/or parts of the report visible or to make them known to third parties, to copy and/or otherwise multiply and/or distribute them.
  3. Complaints about work performed must be reported in writing by the client within 10 working days of discovery but no later than 20 days after completion of the work in question. With the expiration of this period, all rights arising for the client from law and agreement shall expire.

Article 10: Payment

  1. Payment shall be made within 30 days of delivery of the goods, unless otherwise agreed in writing. In case of non and incomplete payment within the aforementioned payment period, the other party shall be in default and liable for damages without notice of default or further warning. The other party shall then owe the user the statutory interest pursuant to Article 6:119a of the Dutch Civil Code, whereby a part of a month equals 1 month. When calling in legal assistance for the collection of the aforementioned obligation to pay etc., the other party shall owe the user extrajudicial collection costs of 15% over the principal sum and the interest due, such with a minimum of € 250.
  2. The user is already entitled, before fulfilling its obligations, to require adequate security for the fulfillment of the other party’s obligations, if in its opinion the circumstances give rise to this. Refusal of the other party to provide the requested security shall entitle the user to dissolve the agreement out of court, without prejudice to its right to compensation for damages such as costs incurred and loss of profit. The user shall never be liable for any damages.
  3. Payment of a sum of money attributable to a particular obligation shall first be applied to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest.
  4. Complaints about invoices must be made in writing to the user within 7 days of receipt. After expiration of this period, complaints are no longer possible. Complaints shall not release the other party from its payment obligations to the user.
  5. The other party shall not be permitted to set off its payment obligations to the user in any way against a claim of the other party against the user or against any other claim, nor shall the other party be permitted to suspend its payment obligation towards the user.

Article 11: Advertising

  1. Control of quantities and inspection of the quality of the delivered goods by the user rests with the other party. The inspection shall be deemed to have been performed by the other party upon delivery.
  2. Complaints with respect to the delivered goods must be made by the other party in writing and by registered mail within 7 days of receipt of the goods with an accurate description of the nature and ground of the complaints.
  3. After 7 days after delivery, the items are considered to be in good condition and of sufficient quantity. Afterwards, complaints are not possible.
  4. If the other party has complained in time and the complaint is found to be justified, the user shall only be obliged to replace the faulty goods without the other party being entitled to any additional compensation whatsoever. The parts released upon replacement shall remain/become the property of the user.
  5. A complaint can only be founded if at least all of the following conditions are met:
    1. the failure is due to a cause attributable to the user;
    2. any additions or changes to the delivered item have been made by the user, or by the other party with the user’s prior written consent;
    3. fulfillment is not permanently impossible.
  6. If the other party complains in time, the user shall never be obliged to do more than redeliver the goods after the goods about which a complaint was made have been returned to it.
  7. Return shipments will be accepted by the User only after its prior approval. If the complaints turn out to be well-founded, the user will proceed to redeliver after receiving the goods back.
  8. For the redelivery of the returned items, the user must have the opportunity to do so and must be given the time required by the user.
  9. The user shall never be liable for damage that the goods it has delivered may cause to third parties, except for damage that is a direct consequence of a defect in a product delivered by the user that poses a danger to the other party or concerns the safety of the product delivered by the user. At no time shall the user be liable for damage resulting from unsuitability of the item for which the item was purchased from the user. Nor shall the user be liable for damage resulting from a quality or quantity of the goods delivered by it other than that agreed upon, either insofar as this damage was caused to the other party or in the event that the damage was caused to third parties.

Article 12: Force Majeure

  1. Force majeure shall mean: any circumstance independent of the will of the user or unforeseeable, as a result of which fulfillment of the contract by the user can no longer reasonably be performed.
  2. With force majeure is equated: government measures in case of war here or elsewhere or in case of threat of war, strikes (including those at our (sub-)suppliers), lockouts, lack of means of transport, stagnation in the supply of raw materials, fire, excessive absenteeism of personnel, business disturbances and such unforeseen circumstances as a result of which performance of the agreement by the user cannot reasonably be demanded.
  3. If a force majeure situation occurs, the user is entitled to suspend the performance of the agreement or to permanently dissolve the agreement. Within 8 days of the occurrence of the force majeure situation, the user shall inform the other party of this choice. This is only a best-efforts obligation, which will not entail a forfeiture of rights.

Article 13: Dissolution

  1. The agreement between the parties shall be deemed to be dissolved, subject to the legal grounds for dissolution as stated in the Civil Code, without judicial intervention and without any notice of default at the time the other party is declared bankrupt, applies for a provisional suspension of payments or loses the power of disposition of its assets or parts thereof through attachment, receivership or otherwise.
  2. All claims that the user may have or acquire against the other party at the time of dissolution shall be immediately due and payable in full.

Article 14: Liability.

  1. The total liability of the user (including its (sub-) suppliers) for any claim whether in contract, tort or otherwise arising out of, or in connection with the manufacture, sale, delivery, resale, repair, replacement or use of any item, or the provision of services, shall be limited to no more than the amount actually received by the user under any insurance payment.
  2. The user is not liable for damage from whatever cause to property of the other party or third parties arising during or in connection with performance of the agreement, unless there is intent or gross negligence on the part of personnel employed by the user.
  3. The user is not liable for damage, of whatever nature, caused by the fact that the user has relied on incorrect and/or incomplete data provided by or on behalf of the other party.
  4. If the other party has placed the goods itself, the user is not liable for damages of any kind.
  5. The user accepts no liability for advice provided by or on its behalf.
  6. Without prejudice to what is stipulated in the further text of the order or the present general terms and conditions, the user shall never, for whatever reasons, be held liable by the other party for any indirect or consequential damage arising from or connected with the execution of the order.

Article 15: Insurance

  1. The other party is obliged to take out a customary CAR or similar insurance policy, which primarily provides coverage for works, with a solid insurance company. The policy must identify the parties as third parties in relation to each other.
  2. The other party is obliged to include the user as co-insured and as such named therein in the policy (or have it included), as well as to provide insight into the policy (conditions) before the start of the activities. If and insofar as the other party has insured any risk associated with the agreement, it is obliged to claim any damages under that insurance and to indemnify the user against recourse claims by the insurer. If the work of the user relates to the execution of an object, the user shall only be liable for damages not covered by the usual CAR insurance or other insurance equivalent thereto.

Article 16: Confidentiality

  1. Both parties are obliged to keep confidential all confidential information obtained from each other or from other sources in the context of their agreement. Information is considered confidential if it has been communicated by the other party or results from the nature of the information.

Article 17: Choice of forum and choice of law

  1. The legal relationship between the user and the other party is exclusively governed by Dutch law.
  2. The District Court of Limburg, sitting in Roermond, has exclusive jurisdiction to take cognizance of disputes arising from the legal relationship between the user and the other party.

Article 18: Modification of these terms and conditions

  1. The user reserves the right to modify these terms and conditions without notice.
  2. The user is obliged to send amendments in writing before they are applicable to the existing agreements.
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