General terms and conditions
A. GENERAL PROVISIONS
A.1.1 In these terms and conditions, the following terms shall have the following meanings:
The user of the general terms and conditions, i.e. construction knowledge bv;
The party who has concluded an agreement with the User as referred to in these terms and conditions for the delivery or provision of goods and/or electronic products or the performance of work and/or services, all this in the broadest sense of the word.
These general terms and conditions apply to all offers of User and to all agreements between User and Client.
Additional and/or deviating terms and conditions – which also include purchase terms and conditions – of Client do not form part of the agreement between the User and Client and are therefore not binding on the User, unless the User has explicitly accepted these terms and conditions in writing.
In the event of any inconsistency between these general terms and conditions and those of Client, these general terms and conditions shall prevail, unless User has confirmed Client in writing that his terms and conditions prevail.
If these general terms and conditions are amended in the interim, the amended version thereof shall form part of any agreement concluded between User and Principal after the date on which the amendment comes into effect.
A.3 Offer, order and formation of an agreement
All quotations and offers made by the User are entirely without obligation, unless the contrary has been explicitly stipulated in writing. If an offer or quotation of User contains an offer without obligation and this offer is accepted by Client, User has the right to revoke this offer within two working days after Client becomes aware of the acceptance. Unless explicitly agreed otherwise, the User’s quotations and offers are valid for thirty days.
The agreement between the User and Client is concluded by placing a written (including an order placed by fax or electronically) or oral (telephone) order or assignment with the User and the acceptance of this order or assignment by the User. By placing a written or verbal order or issuing an assignment, Client accepts these general terms and conditions.
A.4 Prices and rates
The sale, delivery and provision of goods or the performance of work and/or services respectively shall take place at the prices and rates charged by the User at the time of the conclusion of the agreement.
Unless explicitly agreed otherwise in writing with the Client, all prices and rates charged by the User are inclusive of VAT and exclusive of any other government-imposed levies and exclusive of administration, installation, travel, transport or shipping costs.
User reserves the right to change the prices and rates. Unless otherwise agreed, the amended prices and rates shall apply from the moment at which they are introduced.
In the event of a price and/or rate increase of more than 10% on an annual basis, the User shall inform the Client of this at least one month before the commencement date. If Client cannot agree with the price and/or rate increase announced by User, which exceeds 10% on an annual basis, Client is entitled to dissolve the existing agreement with User by means of an extrajudicial declaration to be sent to User in writing. If User has not received this statement within thirty days after receipt by the Client of the notification of the price and/or rate increase, Client is considered to have agreed to the price and/or rate increase.
A.5 Invoicing and payment
Invoicing takes place by the User within two months after delivery or provision respectively the commencement of the performance of the work and/or services, unless explicitly agreed otherwise with Client.
Payment by Client must be made within thirty days after the invoice date to a bank and/or giro account designated by User, unless explicitly agreed otherwise in writing.
Payments made by Principal shall first serve to pay all interest and costs due and only thereafter to pay the oldest outstanding and payable invoices, even if Principal states that the payment relates to a later invoice.
Without the explicit written consent of the User, the Client is not permitted to set off his payment obligation towards the User against a claim of the Client against the User, for whatever reason.
User is at all times entitled to demand advance payment, cash payment or security for payment from Client.
In the event that the payment term is exceeded, User is entitled, after proper notice of default has been served on Client (whereby a period of fourteen days will be observed), to charge Client the statutory interest as from the due date of the invoice.
If, despite a proper notice of default, Client does not pay or does not pay on time, Client will owe User, in addition to the interest referred to in clause A.5.6, extrajudicial costs, which will be calculated on the basis of the degressive collection rate of the Netherlands Bar Association, without prejudice to User’s right to charge Client the actual costs incurred, including any judicial costs, if these exceed the amount thus calculated.
In the event of nonpayment or late payment by Client or non-performance or improper performance of any obligation incumbent on Client, User is entitled to dissolve the agreement extrajudicially and to discontinue further deliveries or performance of work and/or services, without prejudice to User’s right to claim performance or compensation of the damage suffered by Client as a result of the dissolution of the agreement.
A.6 Delivery and delivery terms
User shall deliver or make the goods and/or products available as soon as possible after receipt of the order/assignment from the Client, or commence the performance of work and/or services, if the commencement of the work and/or services is possible.
If delivery or provision or performance of the work and/or services cannot take place within the term expected by the User, the User shall – as far as reasonably possible – inform the Client of the expected date of delivery or provision or of commencement of the work and/or services as soon as possible after receipt of the Client’s order/assignment.
During eight working days following receipt of the notification referred to in article A.6.2, Client has the right to unilaterally declare the agreement entered into with User dissolved free of charge. This declaration must be made in writing. It should be received by User no later than the eighth working day after receipt of the statement referred to in article A.6.2, in the absence of which Client can no longer dissolve the agreement or claim compensation from User for this reason.
User is entitled to suspend the fulfilment of his obligations vis-à-vis Client as long as Client has not fulfilled all his (payment) obligations pursuant to any legal relationship existing with User. This suspension applies until such time as Client has fulfilled his obligations vis-à-vis User in full.
A.7 Force majeure
Force majeure is understood to mean any shortcoming in the execution of the agreement which cannot be attributed to the User or Client, because it cannot be attributed to the fault of the User or Client, nor is it for the account of the User or Client by virtue of the law, legal act or generally accepted views.
In the event of temporary force majeure, the User is entitled to extend the intended delivery period by the time during which the temporary force majeure continues.
After receipt of the notification referred to in clause A.7.2, Principal is entitled to unilaterally declare the agreement dissolved free of charge, if Principal cannot reasonably be expected to accept the goods/products or the performance of the work and/or services as a result of the delay. Article A.6.3 applies mutatis mutandis.
In the event of permanent force majeure, which is understood to mean a circumstance beyond the User’s or Client’s control and which makes the delivery or provision of goods or products or the performance of activities and/or services impossible, respectively, the User or Client is entitled to dissolve the agreement extrajudicially. In the event of force majeure, the Client cannot claim compensation from the User for damage suffered by him, without prejudice to the provisions in section 6:78 of the Civil Code.
Unless agreed otherwise, the Principal must submit complaints about the goods or products delivered or made available or the work and/or services performed within ten working days of the invoice date or after commencement of the work and/or services, respectively.
A.9 Intellectual and industrial property rights
All copyrights and all possible other intellectual or industrial property rights as well as similar rights, including neighbouring rights and rights for the protection of databases, information and/or performances, with regard to or with regard to goods or products delivered and/or made available by the User to the Client or activities and/or services carried out for the Client accrue exclusively to the User. For the application of this article A.9, “User” is also understood to mean a third party from whom the User has obtained rights as referred to here in licence with regard to the goods, products, work or services referred to here.
The Client is not permitted (and this applies, if necessary, in addition to the User’s copyrights or neighbouring rights as referred to in article A.9) to license the goods, products, activities or services referred to here. . 1) without the User’s prior written consent, to reproduce or make public in whole or in part any good or product or information supplied and/or made available to Client by the User within the framework of services or work performed by the User, if this is done (i) for the benefit of a company, organisation or institution or (ii) for one’s own exercise, study or use which is not strictly private in nature or (iii) for inclusion in any daily or weekly newspaper or magazine (whether or not in digital form) or in a broadcast of a radio or television programme, unless explicitly stated otherwise in these general terms and conditions.
None of the provisions in the agreement concluded with the Client or any agreements between the User and the Client ensuing therefrom serve to transfer rights as referred to under clause A.9.1 to the Client in whole or in part, unless expressly agreed otherwise in writing. Client acknowledges these rights and shall refrain from any form of (in)direct violation of these rights under penalty of forfeiture of a fine of € 2,500 payable in full for each violation or each week that the violation continues, without prejudice to the User’s other rights in this respect, including the right to fulfilment and/or full compensation.
If the Client notices that third parties infringe the rights referred to in article A.9.1, the Client is obliged to inform the User thereof immediately in writing. Without the User’s written permission, Principal will not take any action himself in or out of court against such an infringement in any way whatsoever. If the User decides to take action in or out of court against infringing third parties, the Client will provide all cooperation requested by the User at the User’s expense.
The Client is not permitted to change or remove (or have this done) any goods or products delivered or made available to him and/or documentation or data carriers made available to him by the User on the grounds of the performance of activities and/or services, all this in the broadest sense, common indication concerning rights as referred to in article A.9.1 or indication of brands or trade names of the User or third parties.
A.10 User’s liability and indemnity
Although the utmost care has been taken with regard to the content of the goods, products, work and/or services supplied by the User, the absence of any errors or omissions therein cannot be guaranteed. The User, authors or editors will not be liable in any way whatsoever for any errors or omissions or for the Client’s use of the goods, products, activities and/or services referred to. The User therefore only accepts legal obligations to pay compensation insofar as this is apparent from this article A.10.
The presence of a defect never entitles the Client to suspend or set off his payment obligations with regard to the Product.
The User’s total liability on account of an attributable shortcoming in the obligation to deliver any performance is limited to compensation of direct damage up to a maximum amount equal to the price stipulated for that performance (excluding VAT). If the agreement is (mainly) a continuing performance agreement with a term of more than one year, the amount referred to above shall be set at the total of the fees (excl. VAT) stipulated for one calendar year. However, under no circumstances will the total compensation for direct loss per year exceed € 250,000 (two hundred and fifty thousand euros).
Direct damage within the meaning of this article shall be understood exclusively:
the reasonable costs the Client has incurred to have the User’s performance comply with the agreement entered into;
reasonable costs incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of this article;
reasonable costs incurred to prevent or limit the damage, insofar Client demonstrates that these costs have led to the limitation of direct damage within the meaning of this article.
The total liability of the User for damage due to death or bodily injury or for material damage to goods shall in no case exceed the amount paid out under the User’s insurance, but in no case more than € 1,000,000 (one million euros) per event.
User’s liability for indirect damage, including consequential damage, loss of profit, lost savings, damage as a result of business stagnation and any damage other than that referred to in clause A.10.3 and A.10.4 is excluded. However, the User’s liability for indirect damage shall exist in the event of intent or gross negligence on the part of the User or third parties engaged by the User.
Furthermore, User is not liable for damage suffered by the Client or any third party, of whatever nature and caused by whatever cause, which is the result of incorrect and/or inexpert use by the Client or any third party of products supplied or made available by the User or work and/or services performed.
Apart from the cases referred to in articles A.10.3 and A.10.4, User is not in any way liable for compensation, irrespective of the ground on which an action for compensation would be based. However, the maximum amounts referred to in clause A.10.3 and A.10.4 will lapse if and in so far as the damage is the result of intent or gross negligence on the part of the User or third parties engaged by it.
Client can only invoke the consequences of an attributable shortcoming in the fulfilment of an agreement concluded with the User, after Client has properly served User with a notice of default in writing and User continues to fail to do so even after the expiry of the reasonable term set in this respect. The notice of default must contain as detailed a description of the shortcoming as possible, in order to enable User to respond adequately.
A condition for the existence of any right to compensation is always that the Client reports the damage to User in writing as soon as possible after it has arisen.
For the purposes of this article, a series of related damage-causing events is considered a single event.
Client indemnifies the User against all claims from third parties with regard to goods or products delivered and/or made available by the User or activities and/or services performed, unless it has been established by law that these claims are a direct consequence of gross negligence or intent on the part of the User and the Client furthermore demonstrates that he is not at fault in any way in this respect.
A.11 Termination of the agreement
User is entitled to dissolve the agreement with the Client with immediate effect for the future by means of a written notification without (further) prior notice of default if:
– Principal despite proper notice of default
culpably failing to comply with any of his obligations.
– suspension of payment (provisional or otherwise) to the Client
is granted or the Client becomes bankrupt
declared, Client a request for application of a
submit debt restructuring plan or Client under guardianship
– seizure is made at the expense of the Client on the Client’s
goods in respect of substantial debts and this attachment for a longer period of time
then be maintained for two months;
– Client’s business operations in whole or in part
ceases or otherwise liquidates and/or its business activities
without the User’s prior written consent
drastically changes or transfers to a third party.
In the event of termination of the agreement, all payments owed by the Client to the User shall be immediately due and payable in full.
On account of the aforementioned termination of the agreement, the User is never obliged to pay any compensation or payment to the Client, without prejudice to the User’s right to full compensation on account of breach by the Client of his obligations as referred to above and without prejudice to the User’s other rights in this respect.
A.12 Applicable law and disputes
On each by User with Assignment
All disputes, ensuing from or related to obligations, which are part of the agreement entered into by the User with the Client, will exclusively be submitted to the competent court in the User’s place of residence, insofar as legal provisions do not oppose this.
All notifications in the context of compliance with the agreement(s) entered into between the User and Client and these general terms and conditions will be deemed to have been made properly if they have been sent by registered post with acknowledgement of receipt or fax to the party for whom they are intended to the address where it appears from the registration in the Trade Register, or its last known address.
All costs incurred by User to maintain or exercise rights vis-à-vis Client pursuant to the agreement concluded with Client and/or these general terms and conditions, both judicially and extrajudicially, shall be borne by Client.
Modifications and/or additions to the agreement concluded with Principal and these general terms and conditions are only valid if and insofar as they have been laid down in writing.
User is entitled to transfer his rights and/or obligations ensuing from the agreement(s) concluded with Client to subsidiaries and/or group companies as referred to in sections 24a and 24b Book 2 of the Dutch Civil Code or to legal successors, by means of which transfer User will be discharged from his obligations towards Client. Client is obliged at the User’s first request to provide all cooperation considered necessary by the User for the aforementioned transfer.
Without the prior written consent of the User, Client is not permitted to transfer his rights and/or obligations from the agreement concluded with the User (and agreements between the User and Client resulting therefrom) and/or these general terms and conditions to third parties or to encumber rights in favour of third parties with a limited right. The User will not withhold the permission referred to herein on unreasonable grounds.
B. RIGHT OF USE OF ELECTRONIC PRODUCTS AND SOFTWARE
The provisions stated in this section B apply in addition to the general provisions (section A) of these general terms and conditions if User grants Client a User Right on electronic products.
For the purposes of this section
the description provided by User to Client of the functionality and user possibilities of the Product, in any way, whether or not in electronic form, made available to Client by or on behalf of User;
Right of Use:
the right provided by User to Client pursuant to the Licence Agreement, with due observance of the provisions of these general terms and conditions, to have a Product used in his organisation by categories and/or (at most) numbers of users as described in the Licence Agreement;
the agreement concluded by the User with the Client in any form whatsoever (in writing, in writing or orally) with respect to the provision of a Product;
computer software, data collections (databases) and/or other publications, recorded on and/or included in electronic data carriers or otherwise made available or accessible by the User to Client in any electronic form, all this in the broadest sense. With regard to the scope and limitations of the Right of Use, the Product also includes the documentation, updates as well as other interim additions to the Product;
all subsequent versions and new releases of a Product made available to the Client by the User.
B.3 Specifications and Use
The Product shall be made available to Client in the manner stipulated in the specifications which User informs Client and which are accepted with the conclusion of the Licence Agreement.
Principal shall only allow authorised persons in his organisation to use the Product and the aforementioned supporting equipment and/or electronic media.
User is at all times entitled to give Principal further (user) instructions and/or other instructions regarding the use of the Product, supporting equipment and/or electronic media. Principal now declares to accept these further (user) instructions and/or instructions in advance and to comply therewith.
Without prejudice to the other provisions of these General Terms and Conditions, the Client is only permitted to gain access to the information contained in a Product in the manner agreed in the Licence Agreement relating to the Product.
B.4 Scope of the Right of Use; Updates
User grants Client a non-transferable and non-exclusive Right of Use for the Product. The Right of Use exclusively comprises the powers explicitly granted in these General Terms and Conditions or the Licence Agreement; apart from this, Client is not permitted to make public, reproduce or alter the Product in any way whatsoever, in whole or in part, except insofar as the Product is not protected by any right as referred to in clause A.9.
The Right of Use comprises the following acts, which may only be performed by persons working in the Client’s organisation and also only within the limitations of the Licence Agreement: – loading, displaying, consulting and having the Product function in accordance with the User’s corresponding written specifications;
– the printing out of a few small parts of information that are derived from
a Product has been requested;
– transferring it to a text file of a few small
parts of information retrieved from a Product and the printing of that text file.
The Product may only be used (a) by persons falling within the category(ies) and (b) by no more than the number of users and (c) on the equipment and/or infrastructure as described in the Licence Agreement.
If and as soon as the Product has been used without the User’s prior written permission by more or other users or on equipment or infrastructure other than as referred to in this article B.4.3, Client shall be obliged to pay the fee usually charged by User for such multiple use, without prejudice to User’s other rights in respect of such unauthorised use, including the rights as referred to in article B.6.
The Right of Use is always granted under the condition of full and timely payment by Client of the fee applicable to the Product.
The actions included in the Right of Use may only be performed for Client’s own business or professional activities, but never in such a way that they lead or can lead to any form of – commercial or non-commercial – exploitation of the Product or any part thereof by Client or a third party. The Client is not allowed to issue or transfer the Product or copies thereof or Rights of Use in respect thereof, in any form whatsoever, to any third party, to encumber the Product or copies thereof with any limited right, or to contribute the same to any company or partnership, unless the User has given prior written permission to do so.
Without prejudice to the provisions of article B.4.2, Principal is not permitted to integrate or merge the Product in whole or in part with software or (whether or not) electronic data collections of third parties or of Principal himself.
If the Product has been made available to Client for online use, User shall make every effort to ensure that Client has access to the Product twenty-four hours a day (with the exception of maintenance moments). User will carry out the necessary maintenance (or have it carried out) as much as possible outside normal working hours. If reasonably possible, the times at which the maintenance will take place will be communicated to the Client in advance.
Client shall at all times grant User and third parties designated by User for that purpose access to the rooms (of Client) where the Product delivered by User is located and where it is used, in order to be able to inspect it, if necessary maintain it and ensure the correct compliance of Client with the Licence Agreement and these general terms and conditions.
B.5 Guarantee and liability with respect to the Product
If with regard to a Product it would be determined by court decision that its use by end users is contrary to the intellectual property rights of a third party, the User will make every effort to ensure that the Client experiences as little hindrance as possible in his operational use of the Product and, if necessary, that the Product is replaced by an amended version.
Apart from the provisions of the preceding paragraphs of this article, Client has no claim whatsoever against User on account of defects of any nature whatsoever in or with regard to the Product.
Any liability of the User for compensation of damage, both direct and indirect, including immaterial damage, trading loss or stagnation damage or any other damage, ensuing from the Licence Agreement or related to the Product and/or the use thereof by the Client, is excluded, except insofar this damage is due to intent or gross negligence on the part of the User, not including intent and gross negligence on the part of third parties engaged by the User with the Client’s consent. Furthermore, the Client fully indemnifies the User against claims from third parties on account of the aforementioned damage(s).
B.6 Term and termination of the Licence Agreement
Unless expressly agreed otherwise, the Right of Use is granted for an indefinite period of time and the Licence Agreement can only be terminated or dissolved in the cases referred to in this clause B.6.
The Licence Agreement can only be terminated prematurely by or on behalf of User or by Client by the day one year after the date of the Licence Agreement, with due observance of a notice period of three months.
Notice of termination must be given in writing. If the Client fails to observe the notice period, the Licence Agreement will be automatically extended for a period of one year. In this case, User shall invoice Client for this period and Client is obliged to pay this invoice.
User has the right to dissolve the Licence Agreement with immediate effect for the future by means of a written notification without prior notice of default if:
– Principal fails imputably in the performance of any obligation as referred to in articles A.5, A.9 and B.4 or uses the Product outside the scope of the Right of Use or otherwise infringes the rights referred to in article A.9;
– the Client is granted (whether or not provisionally) a suspension of payments or the Client is declared bankrupt, the Client submits a request for the application of a debt rescheduling arrangement or the Client is placed under guardianship or administration;
– the Client’s goods are seized in respect of substantial debts and this seizure is maintained for more than two months;
– Client discontinues all or part of his business operations or liquidates his business operations in any other way and/or drastically changes his business operations or transfers his business operations to a third party without the User’s prior written consent.
On account of the aforementioned termination of the Licence Agreement, User is never obliged to pay any compensation or payment to Client, without prejudice to User’s right to full compensation on account of Client’s violation of his obligations or rights as referred to above and without prejudice to User’s other rights in this respect.
In all cases of termination or dissolution of the Licence Agreement, the Client must hand over to the User all copies of the Product and of the Documentation, all data carriers on which the Product is recorded, all copies of the Product, if any, as well as all equipment other than that made available to the Client by the User for purchase, including security equipment and/or electronic media made available to the Client by the User, within ten working days after termination or dissolution. The Client is furthermore obliged to remove the Product from all (computer) equipment present at the Client’s premises as soon as possible, but at the latest within ten working days after termination or dissolution, and to enable the User, if so desired, to check compliance with this obligation, or have it checked.
If Principal does not fulfil his obligations referred to in article B.6.4, User is entitled to take all measures he deems appropriate in order to safeguard User’s rights with regard to the Product, Documentation, supporting equipment and electronic media.
In addition to Section A (General Provisions) of these general terms and conditions, the provisions set forth in this section C apply if User provides services to Client, such as research, consultancy, education, courses, training, support or the design or development of information systems.
User shall make every effort to carry out the service provision with due care, where applicable in accordance with the agreements and procedures laid down in writing with Client.
If it has been agreed that the provision of services will take place in phases, the User is entitled to postpone the start of the services belonging to a following phase until the Client has approved the results of the preceding phase in writing.
If the agreement for the provision of services has been entered into with a view to execution by a certain person, User shall always be entitled to replace this person with one or more other persons with the same qualifications.
C.3 Modification and additional work
If, at the request or with prior consent of the Client, the User has carried out activities or other performances which fall outside the content or scope of the agreed service provision, these activities or performances shall be paid by the Client to the User in accordance with the User’s usual rates. However, User is not obliged to comply with such a request and may demand that a separate written agreement be concluded for this purpose.
Client accepts that activities or performances as referred to in article C.3.1 may influence the agreed or expected time of completion of the Service.
C.4 Study programmes, courses and training courses
Insofar as the service provision of user consists of providing an education, course or training, user may at all times demand payment due in respect thereof prior to the commencement thereof. The consequences of cancellation of participation in an education, course or training shall be governed by user’s usual rules.
If, in the User’s opinion, the number of registrations gives cause to do so, the User shall be entitled to cancel the education, course or training, to combine it with one or more other education, courses or training sessions, or to have them take place at a later date or time.
The following terms and conditions shall apply to the use of BouwKennis research information in publications. Information of BouwKennis received by you as a client remains the property of BouwKennis at all times. BouwKennis grants primary permission to the clients of its information to use it for internal purposes. If you wish to use BouwKennis information for other purposes, for example in publications, you will need prior written permission from BouwKennis.
The use of research information from BouwKennis is subject to the following conditions:
1. The draft of your statement must be made available to BouwKennis for inspection and approval prior to publication.
2. For the publication of BouwKennis research information in external correspondence from third parties, such as advertisements, press releases and leaflets or any other commercial document, written permission must have been granted by BouwKennis.
3. If you wish to make use of our research information in such publications, you can always contact us. We will then examine on a case-by-case basis whether we can grant permission for this.
4. If we grant you permission to use research information, this is always once-only, unless explicitly stated otherwise.