Terms and conditions

ARTICLE 1. | DEFINITIONS

In these terms and conditions of delivery, the following terms, always indicated with a capital letter, are used with the following meanings.
Centwerk: Centwerk B.V., the user of these terms and conditions of delivery, established at Buitenwatersloot 335, 2614GS Delft, registered in the Trade Register under Chamber of Commerce number 27238178.
Customer: any natural person acting in the exercise of a profession or business, or legal entity, with whom Centwerk has concluded or intends to conclude an Agreement.
Parties: Centwerk and the Customer jointly.
Agreement: any Agreement concluded between the Parties, within the framework of which Centwerk has undertaken, against a price agreed upon, to supply Products to the Customer.
Products: all items to be delivered to the Customer within the framework of the Agreement that have been manufactured by Centwerk in accordance with the Customer’s specifications by means of assembly and/or machining.
Written: communication in writing, communication by e-mail or any other form of communication that, in view of the state of the art and the prevailing views in society, can be equated therewith.

ARTICLE 2. | GENERAL PROVISIONS

These terms and conditions of delivery apply to every offer made by Centwerk and every Agreement concluded.
The general terms and conditions of the Customer and/or a third party, however designated, do not apply to the Agreement, except insofar as Centwerk has expressly accepted them in writing.
The nullification or invalidity of one or more of the provisions in these terms and conditions of delivery shall not affect the validity of the remaining provisions. In such a case, the Parties are obliged to enter into mutual consultation in order to reach a replacement arrangement regarding the affected provision. In doing so, the purpose and intent of the original provision shall be taken into account as much as possible.

ARTICLE 3. | QUOTATIONS, CONCLUSION AND CONTENT OF AGREEMENTS

Every quotation from Centwerk is without obligation, even if a period for acceptance is stated therein. A quotation from Centwerk may still be revoked by Centwerk immediately after its acceptance by the Customer in accordance with paragraph 3.
The Customer may derive no rights from a quotation from Centwerk containing an obvious error or mistake, nor from a quotation from Centwerk based on incorrect or incomplete data provided by the Customer.
Every Agreement is concluded, without prejudice to the provisions of paragraph 1, at the moment the Customer has signed the quotation from Centwerk and returned it to Centwerk’s possession. If the Customer’s acceptance deviates from the offer in the quotation, the Agreement is not concluded in accordance with this deviating acceptance, unless Centwerk expressly indicates otherwise in writing.
If the Customer concludes the Agreement in the name of another natural or legal person, by entering into the Agreement, he declares that he is authorized to do so. The Client is jointly and severally liable, in addition to this (legal) person, for the fulfillment of all obligations arising from that Agreement.
Oral agreements, as well as Written agreements that have not been ratified by means of a signature of an authorized representative of Centwerk, do not bind Centwerk.
The Agreement comprises exclusively the services of Centwerk expressly stated in the quotation. In the event that the Parties agree on additions or amendments to the quotation, these shall not be binding until these agreements have been ratified by means of an amended quotation and by signature by the Parties.

ARTICLE 4. | TIME LIMITS

Centwerk endeavors to meet the execution and delivery time limits to which it has committed itself towards the Customer; however, all such time limits are to be regarded solely as indicative, non-binding time limits. Centwerk’s default shall not occur until the Customer has given Centwerk written notice of default, in which notice a reasonable period is stated within which Centwerk can still fulfill its obligations, and fulfillment thereof has still not occurred after the expiration of the latter period.
Execution and delivery time limits as referred to in paragraph 1 shall not commence until Centwerk has received all data from the Customer required for the execution and/or delivery.

ARTICLE 5. | OBLIGATION OF THE CUSTOMER

The Customer is obliged to make all relevant information and any materials available to Centwerk as soon as is required for the setup and execution of the Agreement, in the manner prescribed by Centwerk. This shall be done at the Customer’s own expense.

ARTICLE 6. | DELIVERY OF THE PRODUCTS

Unless expressly agreed otherwise in writing, the delivery of Products shall take place by delivery thereof to the delivery address specified by the Customer. In the absence of a delivery address, the billing address shall be deemed the delivery address. In the event of delivery, the transport costs shall additionally be borne by the Customer.
The risk of loss and damage to the Products passes to the Customer at the moment the Products are received by or on behalf of the Customer.
In the event of exceeding the agreed delivery period, the Customer shall never be entitled to refuse to accept (or have accepted) the Products to be delivered and/or to pay the amount due by him under the Agreement.
If the Products could not be delivered as a result of a circumstance attributable to the Customer, Centwerk shall store the Products at the expense and risk of the Customer, without prejudice to the Customer’s obligation to pay the amount due by him under the Agreement.
In the event that the Customer refuses to take delivery of the ordered Products or is otherwise negligent in receiving the Products, the Customer shall, at Centwerk’s first request, state within what period the Products will still be taken delivery of. This period shall never exceed one month after the day of the request referred to in the previous sentence. Centwerk is entitled to dissolve the Agreement if the Customer, after the expiry of the period referred to in the previous sentence, has still failed to take delivery of the Products, without prejudice to the Customer’s obligation to pay the amount due by him under the Agreement and the costs of storage of the Products.

ARTICLE 7. | TOLERANCES

The properties of the Products stated in the quotation and/or otherwise by Centwerk may deviate in minor respects from what is actually delivered. Minor deviations are defined as all slight deviations in the properties of the Products, including dimensions, colors, weights, and functionalities of the Products, which are not reasonably burdensome for the Customer and which he should reasonably tolerate.

The presence of such deviations does not provide the Customer with grounds to suspend his obligations under the Agreement, to dissolve the Agreement in whole or in part, or to claim damages or any other compensation. Deviations which, taking all circumstances into account, reasonably have no or only a minor influence on the usability of the delivered goods, shall always be deemed to be deviations of minor significance.

ARTICLE 8. | INSPECTION AND COMPLAINTS

At the time of delivery of the Products, the Customer must immediately inspect (or have inspected) whether the nature and quantity thereof conform to the Agreement. If, in the Customer’s opinion, the nature and/or quantity of the Products do not conform to the Agreement, he must notify Centwerk thereof at or at least immediately after delivery.
In the event of defects that were not reasonably visible at the time of delivery, the Customer must notify Centwerk thereof in writing within three days after he became aware of the existence of the defect, or could reasonably have become aware of it.
If the Customer fails to lodge a complaint in a timely manner, no obligation whatsoever shall arise for Centwerk from such a complaint by the Customer.
Even if the Customer lodges a complaint in a timely manner, the Customer’s obligation to make timely payment of the amounts owed by him under the Agreement remains in effect.
The presence of tolerances as referred to in the previous article, as well as the presence or absence of specifications which nevertheless correspond to the data provided by the Customer to Centwerk, shall not constitute grounds for complaints.

ARTICLE 9. | FORCE MAJEURE

Centwerk is not obliged to fulfill any obligation under the Agreement if and for as long as it is hindered in doing so by a circumstance that cannot be attributed to it pursuant to the law, a legal act, or generally accepted views in society.
If and to the extent that the force majeure situation renders the performance of the Agreement permanently impossible, the Parties are entitled to dissolve the Agreement for that part with immediate effect.
If, upon the occurrence of the force majeure situation, Centwerk has already partially fulfilled its obligations or can only partially fulfill its obligations, it is entitled to invoice the part already performed, or the part still performable, of the Agreement separately as if it were an independent Agreement.
Damage resulting from force majeure shall, without prejudice to the application of the preceding paragraph, never be eligible for compensation.

ARTICLE 10. | SUSPENSION AND TERMINATION

Every Agreement entered into with Centwerk contains the condition subsequent that Centwerk is satisfied with the Customer’s sufficient creditworthiness, this being solely at Centwerk’s discretion.
Centwerk is entitled, if the circumstances of the case reasonably justify it, without judicial intervention, to suspend the performance of the Agreement or to terminate the Agreement in whole or in part with immediate effect, if and to the extent that the Customer fails to fulfill its obligations under the Agreement, fails to do so in a timely manner, or fails to do so fully, or if circumstances that have come to Centwerk’s attention after the conclusion of the Agreement give good grounds to fear that the Customer will not fulfill its obligations. If the performance of the Customer’s obligations in respect of which he is in default or threatens to be in default is not permanently impossible, the right to dissolve shall only arise after the Customer has been given written notice of default by Centwerk, in which notice a reasonable period is stated within which the Customer may (still) fulfill his obligations, and performance has still not occurred after the expiration of the latter period.
If the Customer is in a state of bankruptcy, has applied for (provisional) suspension of payments, the Debt Restructuring Act for Natural Persons has been declared applicable to him, any attachment has been placed on his goods, or in cases where the Customer is otherwise unable to freely dispose of his assets, Centwerk is entitled to dissolve the Agreement with immediate effect and without judicial intervention, unless the Customer has already provided sufficient security for the fulfillment of his payment obligations towards Centwerk.
The Customer shall never be entitled to any form of compensation in connection with the right of suspension or dissolution exercised by Centwerk pursuant to this article.
The Customer is obliged to compensate Centwerk for the damage suffered as a result of the suspension or dissolution of the Agreement.
If Centwerk dissolves the Agreement, all claims against the Customer shall become immediately due and payable.

ARTICLE 11. | PRICES, TRANSPORT COSTS AND PAYMENTS

Unless expressly stated otherwise, all prices quoted by Centwerk are exclusive of transport costs, exclusive of VAT, and exclusive of any other government levies.
If and to the extent that the price has been offered on the basis of subsequent calculation, such as in the case of an hourly rate, the actual hours worked by Centwerk will be charged to the Client on the basis of subsequent calculation.
Unless expressly agreed otherwise in writing, payments must be made by bank transfer within 30 days of the invoice date.
The Client must pay without any recourse to suspension or set-off.
Centwerk is entitled to make the invoice due to the Client available to him exclusively by e-mail.
If the Customer is in a state of bankruptcy, has applied for (provisional) suspension of payments, the Debt Restructuring Act for Natural Persons has been declared applicable to him, any attachment has been placed on his goods, or in cases where the Customer is otherwise unable to freely dispose of his assets, the claims against the Customer shall become immediately due and payable.
If timely payment is not made, the Customer shall be in default by operation of law. From the day on which the Customer is in default, the Customer shall owe interest of 2% per month on the outstanding amount, whereby a part of a month shall be considered a full month.
All reasonable costs, such as judicial, extrajudicial, and enforcement costs, incurred to obtain amounts owed by the Customer, shall be borne by the Customer.

ARTICLE 12. | LIABILITY AND INDEMNIFICATION

Except in cases of intent and willful recklessness on the part of Centwerk and without prejudice to the provisions of Article 8, Centwerk shall no longer be liable for defects in the delivered goods after the delivery of the Products.
Centwerk shall never be liable for damage arising from the Customer failing to provide Centwerk in a timely manner with the information and/or any materials required for the execution of the Agreement, or from Centwerk relying on defective materials provided by the Customer.
The Customer shall bear the damage caused by inaccuracies or incompleteness in data provided by the Customer, a failure to fulfill the Customer’s obligations arising from the law or the Agreement, as well as any other circumstance that cannot be attributed to Centwerk.
Centwerk is, except in cases of intent and willful recklessness on its part, not liable for damage resulting from the use of the delivered Products.
Centwerk shall never be liable for indirect damages, including but not limited to incurred losses, lost profits, and damages resulting from business interruption. Without prejudice to the provisions in the remainder of these terms and conditions of delivery, and in particular the provisions of the following paragraph, Centwerk shall only be held liable towards the Customer for direct damages suffered by the Customer as a result of an attributable failure by Centwerk in the performance of its obligations under the Agreement. An attributable failure shall be understood to mean a failure that a professional acting with good and due care can and ought to avoid, taking into account normal attentiveness and the professional knowledge and resources required for the execution of the Agreement. Direct damages shall exclusively mean:
- the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damages eligible for compensation within the meaning of these terms and conditions of delivery;
- any reasonable costs incurred to bring Centwerk’s defective performance into conformity with the Agreement, to the extent that these can be attributed to Centwerk;
- reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to a reduction of the direct damage within the meaning of these terms and conditions of delivery.
The liability of Centwerk is at all times limited to a maximum of the invoice value of the Agreement, or at least to that part of the Agreement to which Centwerk’s liability relates.
The Customer indemnifies Centwerk against any claims from third parties who suffer damage in connection with the execution of the Agreement and whose cause is attributable to (an)other(s) than Centwerk. If Centwerk should be sued by third parties on this account, the Customer is obliged to assist Centwerk both out of court and in court and to immediately do everything that may reasonably be expected of him in that case. Should the Customer fail to take adequate measures, Centwerk is entitled to take such measures itself without notice of default. All costs and damage incurred by Centwerk and third parties as a result thereof shall be entirely for the account and risk of the Customer.
The liability limiting clauses in these terms and conditions of delivery are also stipulated for the benefit of the director(s), manager(s) and employees of Centwerk.

ARTICLE 13. | RETENTION OF TITLE

All Products supplied by Centwerk shall remain its property until the Customer has duly fulfilled all its obligations under the Agreement.
Except insofar as this must be deemed permissible within the scope of its normal business operations, the Customer is prohibited from selling, pledging, or otherwise encumbering the Products subject to the retention of title.
The Customer is obliged to store the Products delivered under retention of title with due care and as recognizable property of Centwerk.
If third parties seize the Products subject to the retention of title, or wish to establish or assert rights thereon, the Customer is obliged to notify Centwerk thereof as soon as possible.
In the event of sale and/or delivery by the Customer to third parties within the scope of its normal business operations, as well as in the event of a violation of the other provisions of this article, the amount owed by the Customer to Centwerk shall become immediately due and payable in full. Furthermore, in the event of sale to third parties, the Customer is obliged to stipulate a retention of title that is at least as far-reaching as the retention of title under this article, provided that the third party may not be granted the power to encumber or alienate. At the moment of onward delivery to a third party, Centwerk acquires a non-possessory pledge on the Customer’s claim(s) against the third party, with the right to notify that third party thereof and to demand and receive payment.
The Customer grants unconditional permission to Centwerk or third parties designated by Centwerk to enter all places where the Products subject to the retention of title are located. In the event of default by the Customer, Centwerk is entitled to repossess the Products referred to herein. The Customer must provide Centwerk with all information upon first request in order to enable Centwerk to exercise its ownership rights, subject to a penalty of € 500.00 per day that the Customer is in default thereof, immediately due and payable, without Centwerk having to put the Customer in default. All reasonable costs incurred in connection with the exercise of his ownership rights shall be borne by the Customer.
If the Customer has fulfilled his obligations after the sold Products have been delivered to him, the retention of title with respect to these Products shall be revived if the Customer fails to fulfill his obligations under a subsequently concluded Agreement.

ARTICLE 14. | FINAL PROVISIONS

Every Agreement and all legal relationships arising therefrom between the Parties shall be governed exclusively by Dutch law.
The Parties shall not resort to the courts until they have made every effort to settle the dispute amicably through mutual consultation.
Only the competent court within the district of Centwerk’s registered office is designated to hear any judicial disputes between the Parties.