General Terms and Conditions of:
Aannemings- en Verhuurbedrijf Van Tunen B.V. (Van Tunen Contract & Rental, Hereinafter referred to as VT)
Article 1 – Applicability and definitions
- These General Terms and Conditions are (even without explicit stipulation) applicable to all quotations issued by VT as well as all contracts with VT, including those with regards to:
a. Excavation, dredging, (heavy) industry, coastal, shore, transhipment and other relevant activities;
c. Equipment and machinery rental (with or without operating personnel);
- In these Terms and conditions, ‘Client’ means any legal entity or natural person who enters or wishes to enter into an agreement and/or maintains (trade) relations with VT, including but not limited to operational execution and renting or using VT equipment and machinery.
- These terms contain the following paragraphs.
a. General conditions
b. Operating conditions, contracting and subcontracting
c. Rental conditions of equipment and machinery
d. Transport conditions
e. Conditions with regard to the sourcing of personnel
- Any deviations from these terms are only valid if and as far as both parties have agreed upon these in writing. They only apply to the contract at hand and not applicable to any additional contracts and/or rendered agreements, unless explicitly and separately agreed in writing by both parties for those contracts. However, no rights can be derived from previous amendments or agreements.
- All agreements to which these terms and conditions apply shall be governed by Dutch law exclusively. The Haarlem court has exclusive jurisdiction over all claims and disputes concerning agreements or subsequent agreements with VT or their execution.
- If, based on these terms, client is required to indemnify VT, indemnification means integral compensation for all reasonable legal costs made by VT, including but not exclusively with regard to defence costs.
- All documents, such as quotations/confirmation of assignments/invoices or any other documentation are confidential and only intended for the addressee. The use of this information by other parties than the addressee is prohibited. Publication, duplication, distribution and/or supply of the documentation / information to third parties is prohibited.
- VT maintains the right to conduct inquiries and obtain information (among which financial information) about client prior to issuance of quotations/agreements through, among other, Atradius N.V./ Chamber of Commerce or related official entities. VT maintains the right to amend general stipulations further to the advice of these official entities.
- Unless deviation from articles 8, 9 and 10 is explicitly recorded in writing, these still apply in full in the remaining general terms.
Article 2 – Quotations
- All quotations and/or offers from VT are not binding unless explicitly recorded in writing.
- Quotations are only valid for 30 days from quotation date, unless a different expiring date is specifically mentioned in the quotation.
- VT is not liable for not, or not timely, informing client of interim price changes, nor for printing or writing mistakes in price lists, brochures, correspondence, order confirmations, etc., mistakes in and/or deviation of images, drawings and mentioning of technical information included.
- With the acceptance of quotations, provision of assignments and renting of (manned as well as unmanned) equipment and machinery, client acknowledges that VT has provided client the opportunity to become aware of these terms and has studied and accepted them. Any other general purchase/sales/supply terms and conditions, however they are called, as used by client, are hereby explicitly excluded.
- All prices calculated by VT are based on the prices and cost of price determining factors current at the time of agreement.
Article 3 – Order
- The provided recommendations, calculations and/or drawings and technical data by VT – including weight, measurements, capacities, etc., are made in good faith. VT is not liable for any consequences of their implementation or for any occurring inaccuracies in the recommendations, calculations, drawings and offers.
- Those provided with the recommendations, calculations and offers are obliged to indemnify VT from potential claims by third parties based on the provided information.
- Unless explicitly agreed otherwise, all drawings, calculations and other documents related to the assignment and provided by VT, are and remain property of VT, regardless whether client has paid for them. Without prior written consent from VT they may not be duplicated or provided to third parties for inspection.
- Assignments should be executed within the period agreed by the parties. The agreed period begins after reaching an agreement on all technical details and after all necessary data, drawings, etc. required for the execution of the assignment are in the possession of VT.
- Whilst taking into consideration the requests of client, VT will execute the assignment within and during the agreed period deemed appropriate by her.
- The starting time of the assignment and the delivery period are determined by approximation. Deviations and exceeding hereof will not establish liability of VT, as far as the period mentioned in section 1 of this article is not exceeded.
- Force majeure will be considered any circumstance beyond the control of VT that prevents normal execution of the agreement permanently or temporarily, even if given circumstance could have been predicted during the establishment of the agreement. This includes, but is not limited to cases of war, fire, riots, natural disasters, floods, tornadoes, severe air pollution, disruptions in transportation, strikes, government measures and non or late delivery by suppliers.
- In case of force majeure, client will provide VT the opportunity to fulfil its obligations during 1 month after the agreed period, as mentioned in section 1 of this article. If the conditions caused by force majeure continue after this month and execution remains impossible, each party has the right, without prejudice, to consider the agreement as dissolved, without being liable for compensation of costs, damage and interests. The party that seeks to invoke its rights, as mentioned in the previous sentence, will have to inform the other party in writing.
- Client must ensure that the employees of VT, upon arrival at the designated working place, are able to start and continue their activities undisturbedly. Client must remove any obstructions in this regard. In addition, client must ensure that VT employees are able to perform their activities at all times during normal working hours as well as outside normal working hours, as long as VT informs client in due time of the deemed necessity to extend the working hours beyond the normal working hours for the sake of the progress of the project.
- Client should inform VT about all circumstances with regards to the assignment, including the presence and position of hidden cables and pipelines, thus enabling VT to execute the assignment within the agreed period and without inflicting damage. This also implies that the work environment should be safe, such as reinforced soil, embankments, etc.
- VT is not liable for damages that occur as a result of failing obligations as mentioned in section 1 and 2 of this article. Client may be held liable and required to compensate VT for causing damage.
- If VT is held liable by a third party for compensation of costs, damages and interests for which, conform the stipulated in section 3 of this article, she is not liable, client will completely indemnify VT. Regarding damage to hidden cables, pipelines, etc., the determined in the previous sentence will prevail, except if the location of cables and pipelines has been clearly and correctly pointed out, or if the necessary information for avoidance has been provided, but not been followed by the operators as assigned by VT.
- VT is never liable for compensation for business damage and/or consequential damage in any shape, way or form, as suffered by client and/or third parties working for client. Insofar as VT is liable for compensation, the compensation will never exceed the agreed price or contract sum.
Article 4 – Order confirmation
- Agreements on which these conditions apply, should be requested by client in writing and confirmed by VT, at the latest within 14 days after the relevant request, by sending a signed order confirmation. Further to the Identification Act for financial services, legal persons or persons acting on behalf of a legal entity are required to identify themselves by way of an original and valid driving license, passport, European I.D. card or any other document designated by law.
- A client who disagrees with the contents of the order confirmation sent to him by VT is required to object in writing within 14 days after confirmation date. Failing to do so will be seen as approval of the order confirmation.
- In case client objects to the content of an order confirmation as described in the previous section of this article, VT is not obliged to start with the (preparation or) execution of any part of the concerned agreement, before having reached a written agreement about the contents of the order confirmation.
- In case of a joint assignment by multiple clients to VT, each of these parties is jointly and severally liable for fulfilling all obligations deriving from the assignment by the joint clients.
Article 5 – Price changes
- All prices calculated by VT are based on the prices and cost of price defining factors at the time of the agreement.
- In case, after reaching the agreement, but prior to the delivery, changes occur in prices and/or price defining factors, including changes in foreign currencies, increase of insurance premiums, cost-increasing factors such as increase of wages and taxes, as well as increase of other costs, among which fuels, VT is entitled to increase the agreed price accordingly, in compliance with any relevant statutory regulations.
- Amendments with regard to pricing are designed to take effect on January 1 of the relevant year. However, VT maintains the right to index her prices interim and to increase them, if the indexation of her suppliers is performed at another date than January 1 of the relevant year, including fuel components, increase of taxes, as well as other cost increase.
- VT will inform client in writing of any amendments in the agreed price as mentioned in section 1 of this The modified price will be effective as of the day the amendment in price and/or price defining factors became valid, except as provided in section 3. Within 3 days after the date of the in section 2 of this article mentioned notice, client is entitled to recall the assignment in writing. In such case, client is required to immediately pay for all services and supplies rendered by VT, based on the prices established prior to the amendment.
Article 6 – Payment
- Be it prior to the start or before continuing the execution of the assignment, VT is always and whenever she deems necessary entitled to demand sufficient securities from client to ensure timely and complete fulfilment of payment and other liabilities,
- Should assignments be comprised of multiple subprojects or deliverables, VT is entitled to demand immediate payment of the completed activities, even if payment was agreed at a later date, as well as to suspend any remaining activities that are part of the agreement until client fulfills all his commitments to VT with regard to the relevant completed works.
- Unless otherwise agreed in writing, client is required to meet payments to VT in full, without discount for settlement, within 30 days from invoice date.
- In the event of overdue payment, client will be charged 1.5% interest over the total due amount per overdue month or part thereof.
- Client is not allowed to apply settlement, refuse or suspend payment in case of alleged inadequate delivery or execution of the agreement by VT or any other alleged breach by VT.
- VT is entitled to charge client with judicial and extrajudicial collection costs in the event of judicial and extrajudicial recovery, in addition to the principal amount and due interest, including all reasonable legal fees. The liability for compensation of extrajudicial collection costs is in compliance with the BIK (Extrajudicial Collection Costs Act) decision by the mere fact of notification.
- The extrajudicial collection costs, as mentioned in section 6 of this article, amount to at least 15% of the outstanding principal amount, with a minimum amount of € 1,000. – VAT not included.
- If client completely or in part fails to adhere its commitments towards VT, as well as in case of bankruptcy, application for suspension of payment, business liquidation of client, full or partial transfer of its business or seizure of any portion of its assets, any claim which VT may have is immediately due and to be paid in whole.
- VT is always entitled to suspend the execution of already signed agreements, or parts thereof, without requiring judicial intervention, until sufficient securities are provided by client for fulfilment of the commitments of client, or to dissolve these in whole or partly without being liable for indemnification of costs, damage and interests and without prejudice to her other rights.
- Objections regarding the invoice should be submitted to VT within 14 days after the invoice date, in the absence of which client is deemed to have acknowledged the accuracy of the invoice and the right to any claim is lost.
Article 7 – Damages/Liability
- Equipment specially made and/or purchased by VT or a third party on her behalf in the context of an assignment or project remains the property of VT, regardless whether client has paid for these provisions. VT is not liable for loss and/or total or partial destruction or damaging of this equipment, regardless the reason.
- Complaints regarding visible defects should be submitted in writing to VT within 5 days after delivery, failing to do so will void any claim from client towards
- Complaints regarding hidden defects should be submitted to VT in writing, no later than 7 days after client could reasonably have detected them. Failing to do so will void any claims of client towards VT, with the proviso that any claims received later than 3 months from delivery are void.
- VT is not liable for any damages suffered by client and/or a third party, that are caused by or with machinery leased to client in the following situations, but not limited thereto:
a. In case of unmanned machinery rental
b. In case of manned machinery rental, when during the time the damage occurred the rented machine was operated by someone other than by VT designated operators.
c. In case of a manned machinery rental, when the VT operator mostly follows client’s directions.
- VT is not liable for damages suffered by client and/or a third party as a result of the activities performed whilst following directions and/or information – working drawings and other document included – which have been provided by client, his staff and/or third parties appointed by client.
- VT is not liable for damages suffered by client and third parties when during the execution of the activities substances or materials that potentially harm the environment, are found and/or processed and/or transported.
- If VT is held accountable by third parties for indemnification of costs, damages and interests, for which liability is ruled out according to the definitions in sections 4, 5 and 7 of Article 7, client will completely indemnify VT, including reasonable cost of legal fees, such as legal representation in court.
- VT is not liable for costs, damages and interests of client or related third parties deriving from the conduct of VT or her subordinate(s), except in case of gross negligence or intent, in which case the directors of VT must be presented with written proof, including images and damage report, within the set term as described in article 7, section 2 and 3.
- If VT is liable for indemnification of client, no payment shall ever exceed the amount paid by VT ‘s insurance company where appropriate.
- Legal claims for compensation vis-à-vis VT pursuant to these terms and conditions (including all articles included in these general terms and conditions) are subject to a limited period of one year after client has protested in this matter.
- Client ensures that VT is co-insured in the C.A.R. Insurance on site. If there is no C.A.R. Insurance at the work place, client will inform VT explicitly and in time before the beginning of the activities, and will indemnify VT of any claims resulting from the construction works executed according to the directions of client by VT machinery and/or personnel, unless they concern negligence or intent from the part of VT. Construction works are, among other, the activities mentioned in article 1 section 1 in general.
- VT is never liable for damages of any kind as a direct or indirect result of transports and/or deposition activities by VT regarding waste and materials – solid, fluid as well as gaseous – as offered by client which may, directly or indirectly, have consequences for the environment, even if these activities were executed incorrectly and regardless whether these wastes and/or materials were offered separately or in combination with other goods by client to VT.
- If VT is sued for indemnification of damages for which she is not liable according to section 12 of this article, client will fully indemnify VT. Client is obliged to compensate VT for all the costs of integral made legal fees.
- Client is obligated to have sufficient insurance against damages as referred to in section 12 of this article.
- If the offered substances and materials as mentioned in section 12 of this article, by virtue of any law or regulation, or based on any other rule, may not be deposited in public landfills, or the transport of these goods or materials require handling according to specific regulations of any kind and regardless by whom it is provided, then client will have to take such measures and/or take care of such instructions, so that VT will be able to transport and/or deposit these substances and/or materials in a legal manner.
Article 8 – Rental of equipment and machinery
- VT is liable to provide the rented equipment or the rented machinery including the auxiliary equipment in good condition for the agreed period.
- Client is committed to accepting the material from VT and the agreed rental period, including the agreed terms of notice.
- In case of manned rental, VT will maintain the rented material during the rental period at her own expense. Defective parts will be replaced or repaired in time.
- VT is liable to indemnify damages and costs caused by the rented material or the rented machinery and suffered by client to client. This is also the case with manned rental, if the damage is caused by improper actions of the operating personnel, except for the provisions stated in article 7.
- In case of unmanned rental, client is liable to compensate VT for any damages and costs of repair of the rented equipment/machinery itself, including those inflicted by the rented equipment/machinery to the property of VT.
- In case of manned rental, VT is obliged to execute reasonable assignments from client, as long as the requested activities in accordance with the quality, capacity and purpose of the rented materials or machinery and do not jeopardize the safety of the work environment, personnel and material.
- VT or her representative records the kind and number of rental hours on work slips. Periodically the work slips are summarised and signed for approval by both parties. If client does not sign the presented work slips within 2 days, he is deemed to agree with the contents. Invoices are issued according to these work slips.
- Client is prohibited to lease the equipment and machinery rented from VT to a third party, with or without compensation, or to provide use, etc.
- If client fails to return the rentals on time at the end of the rental period, or doesn’t return the rentals to VT in the agreed manner and in good condition, client will be liable for damages deriving from this to VT or a third party and indemnify VT or the third party. In addition, client is still liable for the current hourly rate, multiplied with an increase of 50% to be paid to VT, for every hour exceeding the rental period. In case of unmanned rental of material/equipment and the related, the following additional provisions are applied.
- Prior to the start of the activities and at the end of the activities the material/equipment and related are examined for possible damages under our supervision. Damages to the rented will be at the expense of client.
- If the rented material/equipment is being used at a location that may be polluted, client must report this in advance. Failing to do so inevitably leads to liability of client for any consequential damages. Client will be charged in full for the additional costs deriving from working with polluted materials.
- Client is liable for the rented material/equipment and the related from the moment of commencement until the moment of deactivation by VT.
- Client is committed to maintain the rented in good condition. The costs hereof, the repair cost and replacement of parts and the costs related to the use of the rented, are at the expense of client.
- Fuel is supplied and paid for by client.
- Client is not allowed to perform repairs to the rented himself or have others do so. Repairs may only be done by supplier or a third party appointed by VT.
- If client does not comply with the obligations as described regarding repairs, maintenance, etc. or has been neglectful in another way or acted unprofessionally, the costs deriving hereof are for account of client.
- Client will sign a maintenance agreement at his own expense with supplier or with a third party appointed by VT.
- In deviation with section 17 of this article, client is not obliged to enter into a maintenance agreement.
This does not affect the obligation of client for maintenance and keeping the rented in good condition. Consequently, client is liable towards VT for all damage inflicted as a result of insufficient maintenance. In addition, Should client not be able to use the rented because of insufficient maintenance, any deriving damages and costs are at the expense of client, whilst client is not entitled to suspend his payment commitments towards VT.
- At all times, but as much as possible during normal working hours, VT or its representative has the right, without prior notice, to enter the site or sites where the rented is located and inspect it. Client will provide total cooperation.
- As soon as the order confirmation/rental confirmation or agreement has ended, client will, at his cost and in good condition, considering normal wear and tear, deliver the rented to VT or a person appointed by VT at the time and place indicated by VT. Anything added to the rented, with the approval of VT, should be removed by client before return. Damage, caused by this removal, is for the account of client. If client fails to return the rented as such, VT may enter the location where the rented is located in order to retrieve it by herself. The costs of transport and insurance are for account of client. Until the moment the rented is physically back in the possession of VT, all risks of damages to or at the rented or its destruction are at the expense of client.
- The rented unmanned machinery will remain unmanned until checkout in writing by VT.
Article 9 – Transport services
- If goods are transported by VT, this transportation will be according to A.V.C. Conditions (General Transport Conditions).
- Any additional insurance for the transportation of goods is optional and the responsibility of the owner.
- VT is never liable for damages and/or costs, however their name, shape or form, that are a direct or indirect result of the transportation and/or depositing, even when performed incorrectly, waste and materials– solid, fluid as well as gaseous – offered by client that may affect the environment directly or indirectly, whether these wastes and/or materials are separated, or in combination with other goods as presented by client to VT.
- If VT is sued for indemnification of damage for which she is not liable according to section 3 of this article, client will fully indemnify VT. Client is obliged to compensate VT for all the costs of integral made legal fees.
- Client is obligated to have sufficient insurance for damages as referred to in section 3 of this article.
- If the offered substances and materials as mentioned in section 3 of this article, by virtue of any law or regulation, or based on any other rule, may not be deposited in public landfills, or the transport of these goods or materials require any regulations, however named and regardless who provided it, client will have to take such measures and/or take care of such instructions, so that VT will be able to transport and/or deposit these substances and/or materials in a legal manner.
Article 10 – Conditions for (sourcing) personnel
- Sourcing of personnel to a client applies when VT, with or without compensation and otherwise pursuant to manned machinery rental, loans one or more employees to client to execute the assignment, according to directions and instruction of client, his personnel or a third party appointed by client without control of VT on the activities to be executed and/or the manner where in and/or the circumstances of execution.
- Client is responsible for the implementation of and compliance with the regulations regarding a safe working environment. Client is obliged to designate contact persons.
- Anything beyond standard Personal Protective Equipment is to be supplied by client.
- Except through written consent by VT, client is prohibited to make personnel, loaned by VT, available to a third party.
- Client is also prohibited to have personnel, loaned by VT, operate outside the Netherlands without written consent from VT.
- Client is prohibited, on penalty of a fine of € 5.000.- per case to invite personnel of VT to enter employment by client or a related party of client or to employ a personnel member of VT or to encourage the personnel member to terminate his employment with VT.
- Client is prohibited to have personnel loaned by VT operate beyond regular working hours and exceeding the current work time per day, respectively per week at the company of client in accordance with the applied standards for his own personnel, except for with written approval of VT. Then VT is entitled to charge client with the costs derived thereof.
- VT is not liable for damages, costs and losses the loaned personnel may cause to a third party or client himself, neither factual nor legal acts, or negligence by the loaned personnel.
- Client is obligated to arrange and to maintain the locations, machinery and/or equipment where or with he will perform the activity through the personnel of VT, as well as to adopt such regulations and to provide directions to execute the activities, in such a way that the temporary workers will be protected against danger to life and honour and protected as well as can be reasonably expected with regards to the type of work.
- The liability and burden towards the loaned personnel does not lie with VT but with client. If VT will be held liable, client is obliged to fully indemnify VT with regards to this claim as well as to the reasonable costs of legal fees, among others those related to legal representation.
VT expressly points out to client the necessity of extending their liability insurance. Based on article 6:170 of the Civil Code liable for all those working under their supervision, including any personnel loaned from VT.
- VT is not liable for any agreements made by personnel loaned by her, or which are created in any other way by their actions towards client, whether or not with his approval towards a third party, either in the service of client or any other third party.
- If do required for the activities, client is obliged to provide the personnel loaned by VT with the appropriate instructions, workwear, safety gear and other equipment, unless otherwise agreed in writing.
- Damage to personal belongings as carried by personnel loaned by VT and required for their performance, caused at the location of client, will be compensated by client, unless employee could reasonably have avoided the damage.
- Invoices of VT regarding the loaned personnel will be issued based on the legally binding timesheet forms/work slips as signed for approval by client.
- Client is responsible to supervise, or to monitor, that the timesheet forms/work slips have the correct work hours and extra hours and are clearly filled out.
- If there is a difference between the timesheet forms/work slips submitted to VT and the copies saved by client, the timesheet forms/work slips submitted at VT will prevail for the calculation and added to the invoice, as full evidence, unless client has proof, he is not liable for the difference.
- If client fails to comply with his commitment pursuant section 2 of this article and the record of the employee loaned by VT is disputed by client, the record of the relevant employee of VT will be regarded as full proof of settlement and included in the invoice.
- VT will suspend the availability, if and when any timesheet form/work slip is not signed for approval.
- Client is prohibited, without prior written approval from VT, to offer employment to personnel employed by VT executing (or having executed) activities in the context of the assignment agreement.
Article 11 – Settlement of Disputes
- This agreement is governed by Dutch law. All disputes shall be submitted to the competent judge in Haarlem.
This translation of the general terms and conditions is provided for your convenience. In case of any discrepancy, the Dutch original version shall prevail.