Article 1: General
1.1 In these general terms is meant by:
-Apglos: the private company with limited liability Apglos B.V.
-Client: the other party of Apglos
-direct and/or consequential damage: damage to Client and/or third parties consisting of but limited to: trading/consequential damage, damage to movable or immoveable property or persons
1.2 These general conditions are applicable to all offers and agreements relating to delivery of goods and/or performance of services by Apglos unless expressly agreed otherwise in writing.
1.3 Application of general (purchase) conditions of Clients shall only apply insofar as they do not vary from these general conditions.
1.4 These general conditions are also applicable on all agreements with Apglos in which third parties will be involved in the performance of these agreements. Other or additional general conditions may be applicable on the products and/or services delivered by third parties. The general conditions are further applicable on all offers or agreements in which Apglos will perform as a purchaser of products or services.
Article 2: Offers
2.1 All offers made by Apglos shall be without engagement and shall be based on delivery/execution in normal circumstances during normal working hours.
2.2 Data mentioned in software and/or other programs, catalogues, pictures, drawings, measurements, weights and other (technical) information of Apglos or third parties shall not be binding.
Article 3: Industrial and intellectual property
3.1 The Client shall not be allowed to publish, copy or imitate data mentioned in article 2.2 nor to inform third parties thereof, nor to sell (the right of use of) the software and/or the other programs, to let, alienate or transfer them as security, transfer them to a third party or modify the same.
3.2 The source code of the programs shall not be made available to the Client.
3.3 The ownership of all rights of industrial and intellectual property with respect to the software and/or other programs shall remain in the hands of Apglos. The Client shall not remove designations of intellectual property right.
3.4 The Client is aware of the fact that the software and or other programs contain(s) confidential information and industrial secrets of Apglos.
3.5 Apglos shall be allowed to take technical measures in order to protect the software and/or other programs.
Article 4: Prices
4.1 The quoted prices by Apglos shall be without engagement and exclusive of value added tax and all other taxes, levies import duties, etc., which are due either in the Netherlands or abroad and which shall be for the account of the Client, unless expressly agreed otherwise.
4.2 The quoted prices by Apglos apply to delivery ex words/warehouse and are exclusive of costs of assembly and putting into operation.
4.3 Changes of prices and/or rates, for example rates changes exchanges of manufacture prices et cetera, which will appear after the date of the offers done by Apglos are on the account of the Client.
Article 5: Payment
5.1 Payment shall be made within thirty days after the invoice date.
5.2 Payment shall be deemed to be made once the entire outstanding amount is remitted and paid into the bank account designated by Apglos, without deduction or setoff in case of payment made after the agreed term of payment.
5.3 The Client shall be deemed to be in default by law and shall pay interest on the outstanding amount without notice or defaults as from the due date of the claim, the interest rate amounting 1% per month or, if higher, a percentage equaling legal interest as well as all cost incurred as a consequence of non-payment or untimely payment by the Client, including both judicial and extra- judicial collection costs. The extra-judicial collection costs shall amount to 15% of the amount to be claimed with a minimum of € 250,00. Apglos shall at any time be entitled to demand security.
5.4 Apglos is at all times entitled to require security to be given by Client.
5.5 Apglos is entitled to suspend performance of an obligation in case Client neglects to provide the demand reliable security.
Article 6: Delivery
6.1 Delivery periods mentioned by Apglos shall always be approximately.
6.2 Delivery shall take place ex works/warehouse.
6.3 A delivery period shall not start before the moment Apglos will have received all necessary documents and information, such as, but not limited to, construction drawings, measurement, security of payment, etc., such according to the judgement of Apglos.
6.4 Late delivery shall never rise to damages nor shall it cause the Client to be entitled to non-performance of any obligations towards Apglos.
6.5 During the period of deliverance Apglos is entitled to offer to the Client a temporary alternative e.g. by means of rent, for the account of the Client.
6.6 The carriage of goods shall take place for the account and at risk of the Client.
6.7 Apglos shall be free to choose the means and manner of carriage.
6.8 Apglos shall be entitled to make partial deliveries and to send invoices for partial deliveries.
6.9 Client owes Apglos a reasonable reimbursement (including VAT) as determined by Apglos for the freight charges and handling fee.
Article 7: Claims
7.1 With respect to visible defects and shortage, a written claim must be presented within a period of 14 days. With respect to hidden defects a written claim must be presented within 14 days after discovery of such defect or within 14 days after such a defect could reasonably have been discovered. In any case within the period of warranty provided in article 9, in default as a consequence whereof deliveries/activities shall be considered to be accepted by the Client and cannot be contested anymore.
7.2 If a claim is presented, the Client shall immediately return the goods to Apglos for the account and risk of the Client, on penalty of losing the right to claim.
7.3 Apglos liability in case of a visible or hidden defect shall never lead to another obligation on the side of Apglos than:
i. refunding of the purchase price, or
ii. repairs, or
iii. (re-)delivery of sound goods,
such at Apglos’ option
7.4 In case the under member 7.3 chosen option is the refunding of the purchase price, than repayment will happen within 14 days after returning the goods.
Article 8: Third parties
8.1 Apglos is entitled to call in third parties for the delivery of products and/or the performance of services or other obligations.
Article 9: Warranty
9.1 The warranty period of delivered goods and/or services by Apglos is 6 months.
9.2 If warranty period of the factory warranty for the delivered goods deviates from the period mentioned above, the warranty period provided by the factory shall prevail.
9.3 The warranty period shall start on the day of delivery.
9.4 In consideration of the warranty Apglos is only liable for defects of which he was informed within the warranty period and which the Client proves to have occurred within that period as a direct consequence of the unsound manufacturing method and/or use of unsound materials. Otherwise Apglos shall not be liable.
9.5 The obligations of Apglos in consideration of this warranty shall not exceed replacement or repair free of charge of the defective products, at Apglos’ option.
9.6 The costs (such as inter ail costs of carriage) incurred for repairs/replacement on site shall at any time be for the account of the Client except for the labor costs of the repairs/replacement in question under the warranty.
9.7 The client shall at any time require the express written approval of Apglos for repairs/replacement and/or maintenance by third parties, on penalty of cancellation of the warranty.
9.8 The warranty will never cover, defects that are the consequence of normal wear and tear, improper treatment or improper or incorrect maintenance or repairs/replacements and/or maintenance, et cetera, by Client or third parties.
Article 10: Liability
10.1 The liability of Apglos shall be limited to performance of this obligations under the warranty mentioned in article 9. Any further liability either for direct or for indirect damage, costs and interests, caused by employees of Apglos or third parties called in by Apglos, is, except in cases of gross wrongful acts and/or intentionally acts of omission, expressly excluded.
10.2 The Client shall hold Apglos harmless against any possible liability towards third parties arising from or relating to services and/or deliveries rendered and/or made by Apglos on behalf of the client.
Article 11: Reservation of title
11.1 The ownership of delivered goods shall remain at Apglos until all claims of Apglos against the client are fully paid.
11.2 In case of non-performance of any obligations of the Client towards Apglos, the latter shall be entitled to take back the goods without prior notice of default.
Article 12: Right of pledge and right of retention
12.1 On all goods held or to be held by Apglos for whatever reason a right of pledge shall be established on behalf of Apglos and he shall be entitled to a right of retention ex article 3:290 of the Dutch Civil Code as security for all claims that Apglos has and/or will have against the Client.
Article 13: Services
13.1 Especially in those cases where Apglos is contractually obliged to render any services, Apglos will only perform as best as reasonable possible without warrantying the results as necessary to fulfil Client’s wishes.
Article 14: Force majeure
14.1 Apglos shall not be liable for damage to be sustained by the client if Apglos is prevented from performing any obligation if performance is impeded or delayed or if an obligation cannot be executed anymore on an economically sound basis as a consequence of circumstances beyond Apglos’ control, either foreseeable.
14.2 In case of temporary force majeure, Apglos shall be entitled at his option to modify the delivery period or to cancel the agreement without any damages being due with regard thereto.
Article 15: Legality
15.1 If one or more articles in these general conditions are not legal, for whatever reason, this will not affect the other articles.
Article 16: Applicable law
16.1 Dutch law shall govern all agreements, to which the present general conditions are wholy or partly applicable.
16.2 All disputes arising from offers made by Apglos and/or the Client shall exclusively be submitted to the judgement of the district court in The Hague.
Article 17: Translations
17.1 In case of contradiction between the original (Dutch) version and the translated (English) version of the present general conditions, the original (Dutch) version shall prevail.