GENERAL TERMS AND CONDITIONS

BURG SERVICE BV

 

Address Middenweg 6, 4782 PM Moerdijk

E-mail info@BurgService.nl 

Chamber of 

Commerce no.     23040831 

VAT no. NL004167107B01

 

Definitions

Burg Service: the private limited company Burg Service BV and its associated companies;

Agreement: the agreement to the purchase/sale, the lease of goods, the agreement to provide services or any other agreement concluded between Burg Service and the Client;

The Client: the party, whether this is a legal entity or a natural entity, who concludes an agreement with Burg Service; 

Quotation: every written invitation sent by Burg Service to make an offer with a view to concluding an Agreement;

Ex Works: delivery takes place at the workplace of Burg Service and the costs of loading or unloading are at the expense of the Client;

 

General Terms and Conditions: these General Terms and Conditions of Burg Service are to the exclusion of other General Terms and Conditions.

 

Article 1: Applicability

1.1 The General Terms and Conditions apply to every Quotation, to every agreement realised on the basis of a quotation, and also to every agreement that results from a Quotation made by Burg Service in relation to products and/or services offered by Burg Service. 

 

1.2 The General Terms and Conditions apply to the exclusion of any General Terms and Conditions of the Client. Any General Terms and Conditions the Client may have are explicitly rejected. 

 

1.3 Departures from the provisions of the General Terms and Conditions are not possible, except where explicitly and unequivocally determined by Burg Service and the Client. 

1.4 In the event of a disagreement between the Dutch version of the General Terms and Conditions and the General Terms and Conditions in any other language, the Dutch version of the General Terms and Conditions will take precedence

 

Article 2: Quotations

2.1 Quotations submitted by Burg Service are non-obligatory and based on information supplied by the Client concerning the work, the condition of the work and all other relevant matters. The Quotation is only regarded as an offer if this is explicitly and unequivocally evident from the Quotation. 

 

2.2 Quotations are only supplied in writing and are valid for 30 days unless a different period of validity is mentioned in the Quotation. The period of validity commences on the day on which the Quotation is sent to the Client. 

 

2.3 Burg Service retains the right to withdraw the Quotation up to one week after the Client has accepted the Quotation. 

2.4 The Quotation automatically lapses if it has not been accepted by the Client within the stipulated period of validity.

 

Article 3: Concluding an agreement

3.1 The Agreement has been concluded at the moment that the Client has accepted the Quotation (either verbally or in writing) and the stipulated provisions have been met. 

 

3.2 The Quotation sent by Burg Service to the Client and/or the order confirmation subsequently sent should refer fully and correctly to the contents of the Agreement. The Client is deemed to be in agreement with the contents of the order confirmation, unless he/she informs Burg Service, in writing, within seven days after the date of the order confirmation, that he/she is not in agreement therewith.

 

Article 4: Right/obligation to complain

4.1 The Client guarantees the correctness and completeness of the data supplied to Burg Service. 

 

4.2 In respect of data, measurements and weights, colour fastness, etc., the Client should take into account the usual tolerances in constructions, insofar as necessary for the proper execution of the Agreement. The Client should take into account minor discrepancies in relation to the specifications referred to in the previous sentence.

 

4.3 The Client is bound – subject to loss of the right to complain – to examine (or organise the examination of), within 8 days after delivery, items delivered by Burg Service as described in article 7 (Delivery). If examination reveals that an incorrect delivery has been made and/or items are visibly damaged, the Client is obliged to inform Burg Service of this as soon as reasonably possible, at the latest within 3 days of the examination.

 

4.4 Exercising the obligation to complain can take place by sending a registered letter to Burg Service, providing an accurate description of the complaint and quoting the invoice under which the items concerned were delivered.

 

4.5 The Client must inform Burg Service, in the same way as stated in the previous clause, of defects that were not obvious at the time of delivery and examination, within 8 days after these defects are discovered or could reasonably have been discovered, but no later than 6 months after the items concerned were delivered to the Client.

 

4.6 Any right the Client has to make a claim on Burg Service in relation to defects in items delivered by Burg Service will lapse if:

– the defects are not reported to Burg Service within the period stipulated in this article and/or are not reported as stipulated;

– the Client does not cooperate with Burg Service, or insufficiently, in relation to an investigation of the validity of the complaints;

– the Client has not used and/or maintained the items in accordance with the instructions, or if the Client has repaired and/or altered the items or allowed them to be repaired or altered without the explicit written permission of Burg Service;

– the Client can, despite the complaints made, still use and make use of the items about which complaints have been made.

 

4.7 The submission of complaints does not entitle the Client to refuse to accept and/or pay for the items, or to suspend payment, nor to dissolve the Agreement.

 

4.8 The Client shall at all times allow Burg Service the opportunity of redressing any shortcoming. The Client is also bound to allow Burg Service a reasonable period in which to do this. 

4.9 The right to complain does not apply in relation to defects resulting from normal wear, incompetence usage or incompetent or incorrect maintenance or that may arise after alterations or repairs made by or on behalf of the Client or by a third party.

 

 

Article 5: Retention of title and the right of retention

5.1 Items delivered by Burg Service remain the property of Burg Service up till the moment at which the relevant invoice has been paid in full. Items delivered to the Client by Burg Service are delivered subject to the suspensory condition of the Client having paid the invoice in full. Once the amount of the invoice has been paid in full, ownership of the goods delivered is automatically transferred to the Client.

 

5.2 If Burg Service’s right of ownership of items delivered is lost as a result of the Client having revised or processed the items, the Client is immediately obliged to create a non-possessory pledge on the revised or processed items on behalf of Burg Service.

 

5.3 The Client is entitled to sell or use the items as part of his/her normal business operations, in which case he/she is bound to immediately transfer the funds thus obtained to Burg Service, or – if they were not sold for cash – to immediately transfer that which was received to Burg Service. The Client is not entitled to dispose of items in any way whatsoever, to encumber them with a limited right to security or enjoyment, or in any way to evade Burg Service’s possibility of redress.

 

5.4 The Client is obliged to inform Burg Service immediately of third parties’ claims or attempts to claim items that are the property of Burg Service, to gain possession of or recover them. The Client is bound to do all he/she can to protect Burg Service’s right of ownership or claim thereto.

 

5.5 In the event of failure on the part of the Client in respect of the obligations named in this article, or in the case of a breach of the provision in clause 4 of this article, Burg Service is entitled, after giving notice of default but without the need of judicial intervention, to reclaim ownership of items to which it is – still – entitled based on retention or title or similar. The Client is bound to indicate where items are located, to identify them as belonging to Burg Service and hereby grants Burg Service, in advance, permission to access the locations and buildings concerned (or have them accessed) in order to reclaim the items.

 

5.6 Burg Service is at all times entitled to take custody of items that are in the possession of the Client (or a third party), but which are the property of Burg Service, as soon as it can reasonably be assumed that there is a realistic chance that the Client will not fulfil his/her obligations. The above does not alter Burg Service’s rights resulting from ordinary law: in particular Burg Service also retains the right, after having repossessed the items, to address the Client about damages.

5.7 The Client is obliged to insure the risk of fire and theft in respect of items not yet paid for and, when asked, to allow Burg Service insight into this insurance.

5.8 The above clauses apply insofar as the property rights have not yet been transferred to the Client. If and insofar as the property rights have been transferred to the Client, Burg Service can invoke its statutory right to retain the goods until its invoices have been paid in full. 

 

Article 6: Prices

6.1 All prices quoted by Burg Service are in Euros and are exclusive of turnover tax (BTW), except when explicitly stated otherwise. 

 

6.2 Any other costs, such as storage and transport costs, costs of experts, costs of packaging, loading/unloading and all other additional costs, whether or not imposed by the government, are not included in the prices mentioned in the Quotation and the order confirmation, except when explicitly stated otherwise.

 

6.3 Burg Service is entitled to alter the prices unilaterally in the event of increases in the prices of wages, raw materials and other materials, changes in currency exchange rates, government levies or other price increases beyond the control of Burg Service. If this results in a price increase of at least 15% of the originally agreed price, the Client is entitled to dissolve the Agreement. 

 

6.4 If Burg Service incurs extra costs as a consequence of being supplied with incorrect or incomplete information and/or specifications, Burg Service is entitled to pass these costs on to the Client, without the Client being entitled to dissolve the Agreement. 

 

Article 7 Delivery

7.1 Delivery takes place as follows:

a. for a new product, delivery takes place Ex Works, unloaded at the moment of physical delivery, whereby delivery is deemed to have taken place 30 days after Burg Service informed the Client that the new product is ready;

b. for the repair of a product or the delivery of another service, delivery takes place 30 days after Burg Service has informed the Client that the product and/or service is ready. 

 

7.2 Burg Service will make a reasonable effort to comply with delivery times agreed between the parties. Delivery dates indicated by Burg Service are always approximate and should never be regarded as firm dates.

 

7.3 If, despite due diligence, Burg Service

Is nevertheless unable to deliver on the agreed

date, then the Client is bound to inform Burg Service, in writing, that it is in default and to request a reasonable date on which it will be able to fulfil its obligations. Burg Service is only in default after it has failed to fulfil, within a reasonable period of time, its obligations based on the Agreement with the Client. 

 

7.4 If compliance with the activities in the Agreement is to take place in phases, Burg Service is entitled to postpone starting activities that are part of a phase until the Client has explicitly approved the previous phase in writing.

 

7.5 Burg Service is entitled to delay deliveries

of the assignment if and insofar as the Client fails or will fail to comply with his/her (financial) obligation.

In that case, Burg Service will inform the Client of this intention at least one week in advance.

Article 8: Additional work 

8.1 If Burg Service is expected to carry out 

activities (obligatory or non-obligatory) beyond the scope of the Quotation, or as the case may be, the agreed assignment, then the Client is bound to pay for the additional work of Burg Service. 

 

8.2 If the parties have agreed on a fixed price 

for agreed activities, Burg Service will inform the 

Client of the additional work in good time. Burg 

Service will only start, or continue, the additional work at such a time that the Client has given written permission for the additional work. 

 

8.3 Carrying out additional work can never 

Give reason to dissolve the Agreement. The Client is aware that additional work will result in extending the delivery date by the time needed to carry out the additional work. 

 

Article 9 Confidentiality and Information obligations

9.1 The Parties will take all necessary 

precautions, in good time, that can reasonably 

be taken to ensure the confidentiality of 

information of a confidential nature that is 

obtained from the other party.

 

9.2 Information will in any case be 

regarded as confidential if it is designated 

as such by one of the parties.

 

9.3 The Parties will ensure that all data received from the parties, that is or could reasonably be supposed to be of a confidential nature, remains confidential.

 

9.4 The above provision will not apply if and insofar as the data concerned has to be supplied to a third party by virtue of a court ruling, a statutory regulation or so that Burg Service can fulfil the Agreement properly.

 

 

Article 10: Payment conditions

10.1 Payments to Burg Service will take place within 30 days after the delivery of products to the Client, unless the parties have explicitly determined otherwise.
 

10.2 All payments will take place without any setting off or discount.
 

10.3 Burg Service is entitled to request a down-payment for the services and products to be delivered. Burg Service will only commence its activities after receiving the down-payment.
 

10.4 If the Client does not pay in a timely fashion, then Burg Service will declare the Client in default and will give the Client an opportunity of paying the invoices within a reasonable time of at least 7 days. 

 

10.5 If, after being deemed in default, the Client still fails to pay the invoices, then Burg Service is entitled to charge extrajudicial collection costs. 

 

 

Article 11: Guarantee

11.1 Burg Service guarantees the reliability of items it has delivered, on the understanding that, in the event that defect items are delivered, Burg Service will replace or repair – at Burg Service’s discretion – the defect items that it has delivered during 6 months after delivery, as long as article 7.2 has been fulfilled.

 

11.2 Burg Service also guarantees the reliability of activities it has carried out and the materials used, on the understanding that if the agreed activities were carried out incorrectly, Burg Service will carry them out again during 6 months after completion of the work. 

 

11.3 In the event of inadequate materials being delivered in relation to activities carried out, the inadequate materials delivered will be replaced or repaired – at Burg Service’s discretion – during a period of 6 months after completion of the work.

 

11.4 Not covered by the guarantee are in any case defects that occurred either entirely or partly 

as a consequence of: 

• normal wear 

• incompetent or incorrect use or maintenance,

• an alteration or repair carried out by the Client or by a third party without Burg Service’s permission.

• using the item for a different purpose than the usual one, or, in the opinion of Burg Service, treating or maintaining the item incompetently,

• failing to comply with the written instructions and directions of Burg Service, 

• negligent and incorrect storage.

 

11.5 The guarantee does cover, in relation to the delivery of goods, defects that result from:

• an inadequate design of the item delivered by Burg Service and/or one of its suppliers,

• a material defect in the item delivered by Burg Service and/or one of its suppliers,

• a manufacturing defect in the item delivered by Burg Service and/or one of its suppliers.

 

11.6 Defects that arose as a consequence of

causes mentioned in the previous clause will, after being discussed, be repaired or replaced by Burg Service. The costs of these repairs or replacement activities will be at the expense of Burg Service. 

At the same time, Burg Service will become the owner of the replaced items and/or parts. In relation to materials and products that Burg Service obtained from third parties, the guarantee provisions of Burg Service's supplier will apply. The guarantee is effective 6 months after delivery or, as the case may be, during the period that the guarantee of Burg Service’s supplier is effective.

 

11.7 In respect of carrying out activities, the guarantee covers defects that are the consequence of wrongly executed installation activities or other services. Burg Service will carry out the agreed activities again during 6 months after completion of the work. The costs of these activities will be at the expense of Burg Service.

 

Article 12 Force majeure

12.1. Force majeure is when circumstances cannot be blamed on Burg Service.

 
12.2 Force majeure exists in any case in the event of war and similar situations; government measures; strikes; security incidents, data-leaks; hindrance by a third party; transport problems; unforeseen technical complications; fire, explosion, other serious disruptions in the Burg Service company, which would not normally be at the risk of Burg Service. 
 

12.3 Burg Service can inform the Client that, as a consequence of force majeure, the Agreement with the Client will be dissolved or its fulfilment suspended. 

 

12.4 If Burg Service dissolves the Agreement, any advance payment will be refunded, though the client is obliged to reimburse costs already incurred by Burg Service and loss of working hours insofar as these were incurred on behalf of the Client. 

 

Article 13 Dissolution

13.1 Burg Service is entitled to dissolve the Agreement with the Client, in full or in part, in the following cases:
- the Client does not comply in time or fully with his/her payment obligations, despite being given notice of default;
- if the Client is subject to debt restructuring; 

- in the event of force majeure;
- if the Client is declared unauthorised and/or placed under guardianship; 

- in the event of the Client’s bankruptcy, dissolution or liquidation.

13.2 Burg Service will first inform the Client in writing of the consequences of the dissolution, before actually initiating the dissolution.  

 

13.3 Burg Service will not initiate dissolution on unreasonable grounds, nor will it initiate dissolution if the shortcoming does not justify dissolution. 

 

13.4 After dissolution of the Agreement, all claims on the Client can be demanded with immediate effect, irrespective of whether Burg Service has or has not fulfilled its obligations in full. 

 

Article 14 Liability

14.1 All liability of Burg Service in the legal relationship with the Client is limited to that which is stipulated in this article, unless an alternative mandatory statutory provision applies in respect of liability.
 

14.2 Furthermore, in the event of damages, Burg Service is only liable for direct damage, and never for indirect damage and/or consequential damage.
 

14.3 If and insofar as – despite that which is stipulated in this article – any liability rests on Burg Service, upon whatsoever basis, this liability is limited to the sum that the insurance company will pay, except insofar as intent is involved or gross negligence on the part of managerial staff employed by Burg Service. 

Article 15 Privacy

15.1 Burg Service works in accordance with the General Data Protection Regulation (hereafter: the AVG) and only collects personal data that it needs for processing.
 

15.2 Burg Service ensures sufficient appropriate organisational and technical security measures for an adequate level of safety for the personal data to which it has access.
 

15.3 When third parties are engaged, Burg Service ensures that the third parties it engages are obliged to comply with the AVG and – insofar as necessary – imposes extra guarantees to be able to realise the security of personal data.
 

15.4 No personal data are shared with companies outside the European Economic Area without permission, unless Burg Service is statutorily obliged to do so or if Burg Service has permission to process personal data outside the European Economic Area.
 

15.5 Insofar as loss of personal data occurs, despite having taken appropriate organisation and technical security measures, Burg Service will inform the person responsible for processing the data under the AVG as quickly as possible, within the period of time agreed by the parties. 

 

15.6 Burg Service will make an effort to keep damage as a consequence of a data-leak to a minimum and to rectify it insofar as possible.
 

15.7 A data-leak does not excuse the Client from his/her obligations in the Agreement with Burg Service, unless the Client can show or, as the case may be, plausibly demonstrate, that it was caused by wilful or gross negligence on the part of Burg Service.
 

15.8 Data-leaks that occurred due to a third party engaged by Burg Service should be reported to Burg Service within 48 hours after discovering the data-leak. All relevant information about the data-leak should be reported.
 

15.9 Burg Service will not retain personal data any longer than is necessary for carrying out the task agreed between the parties, unless
a. the Client grants permission for a longer period of storage.
b. Burg Service is obliged to observe a longer period of storage based on statutory provisions. 

15.10. Based on the AVG, clients of Burg Service are entitled to inspect and to alter their personal data, to be forgotten, to transfer data and to be informed. Clients can take advantage of these rights by sending an e-mail to privacy@burgservice.nl. 

 

Article 16 Choice of Law and Forum

16.1 Disputes resulting from agreements or quotations of Burg Service are subject to Dutch law.
 

16.2 All disputes, of whatsoever nature, relating to or resulting from agreements issued by Burg Service and/or to assignments it has carried out, will be settled by the competent court in the district in which Burg Service has its registered office, unless mandatory provisions dictate otherwise. 

 

Utrecht, 18 May 2020