General terms and conditions
- These terms and conditions apply to all offers and all agreements of any type or nature whatsoever between Sunshower B.V. and its contracting party, unless otherwise explicitly stated by the parties in any provisions to the contrary.
- The applicability of any general terms and conditions invoked by the contracting party is expressly rejected.
- In the event that any provision of these general terms and conditions is null and void or is voided, the other provisions of these general terms and conditions shall remain in full force and effect and Sunshower B.V. and its contracting party shall enter into consultation with a view to agreeing on new provisions to replace the void or voided provisions, with, where possible, due allowance for the purpose and purport of the void or voided provision.
- In these terms and conditions, the terms below are defined as follows:
Article: an article included in these terms and conditions.
Civil Code: the Dutch Civil Code.
The contracting party: the party with whom Sunshower B.V. has entered into an agreement or may enter into an agreement.
Sunshower B.V.: Sunshower B.V. (Commercial Register: 27243362), and any legal entity in respect of which Sunshower B.V. (at present or in the future) holds, directly or indirectly, at least 50% of the issued shares, and/or has the power to appoint and dismiss the relevant management board, and/or is a direct or indirect member of the board of directors.
Terms and Conditions: these general terms and conditions of Sunshower B.V.
- Any offer made by Sunshower B.V. is free of obligation.
- The prices stated in the offer are only related to the products and/or activities explicitly described in the offer and are exclusive of VAT and freight charges, unless stated otherwise.
- Verbal commitments by and agreements with representatives of Sunshower B.V. are binding on the latter only if and to the extent that these are confirmed by Sunshower B.V. in writing.
- If Sunshower B.V.’s offer is accepted, the agreement will only be concluded if the acceptance is confirmed by Sunshower B.V. within a reasonable period of time or when Sunshower B.V. starts with the execution of the work.
- Sunshower B.V. cannot be obliged to commence execution of the work until all necessary details are in its possession and it has received the agreed (instalment) payment.
- An agreement, including any amendment or supplement thereof, shall not become binding on Sunshower B.V. until it has been recorded in writing in a contract signed by the parties or an order confirmation signed by Sunshower B.V.
- A written order confirmation by Sunshower B.V. is considered to be a complete and accurate record of the content of the agreement concluded, unless the contracting party has notified Sunshower B.V. of its objections in writing within two calendar days after the date the confirmation was sent.
- Agreed prices are based on the price basis of materials, wages and so on applicable at the time the agreement is concluded. If not explicitly confirmed otherwise in writing, the prices are furthermore based on delivery ex works, which is understood to mean delivery ready for shipment at the factory site of the manufacturer of the products to be delivered by Sunshower B.V. The costs of loading, unloading and transportation of the products are not included in the price and, if Sunshower B.V. is under an obligation to load, unload and transport the products, such costs will be charged to the client separately.
- The price for delivery of goods to be supplied by Sunshower B.V. pursuant to the agreement between the parties is also exclusive of the costs or remuneration of any additional work to be carried out by Sunshower B.V.
- If, after the date of the offer or the agreement and before the time at which the agreement has been fully performed, the prices of (auxiliary) materials, parts and raw materials, wages, social security charges, (semi-) government charges, freight, insurance premiums or other cost price components, including price increases resulting from the depreciation of the Dutch currency, increase, even if this is due to foreseeable circumstances, Sunshower B.V. has the right to increase its prices accordingly, even if fixed prices have been agreed.
- The delivery period commences on the later of the following dates:
a. the date of the conclusion of the agreement;
b. the date of receipt by Sunshower B.V. of the documents necessary for the performance of the agreement;
c. the date of receipt by Sunshower B.V. of the amounts due by the contracting party under the agreement prior to the commencement of the performance.
- An agreed delivery time is at all times indicative and not a deadline.
- Sunshower B.V. is at all times entitled to suspend the execution of agreements pursuant to any delay in manufacture or shipment or other circumstances delaying delivery, which temporarily prevent or delay delivery, without Sunshower B.V. becoming liable for damages as a result of such suspension.
- Unless otherwise agreed, delivery will be made ex works, i.e. the factory of the product manufacturer engaged by Sunshower B.V.
- Exceeding the delivery time - for any reason whatsoever - does not entitle the contracting party to non-fulfilment of any obligation in respect of Sunshower B.V.
- Immediately after the goods are deemed delivered within the meaning of Article 5.4, the contracting party shall bear the risk for all direct and indirect damage that may be caused to or by these goods or parts.
- However, title to the goods, whether processed or unprocessed, shall not pass to the contracting party until the contracting party has paid to Sunshower B.V. in full any amounts due under the agreement, including interest, costs and damages. Notwithstanding this retention of title, the contracting party shall be entitled to deliver the Products to be supplied by Sunshower B.V. to its customers in the ordinary course of business if the contracting party has complied with its payment obligations as stated in Article 8.1, i.e. if the contracting party has paid 50% of the price due. If the contracting party fails to perform its obligations towards Sunshower B.V. or fails to perform them on time, Sunshower B.V. shall have the right, and to the extent necessary, be irrevocably authorised by the contracting party to dismantle the delivered goods and to take possession of them, without any notice of default being required, in which case the agreement shall be dissolved without judicial intervention, without prejudice to Sunshower B.V.'s right to compensation for damage and costs.
- As long as this retention of title applies, the contracting party shall be obliged to insure the products properly against, inter alia, theft, damage and loss.
- As long as any product has not been paid for in full by the contracting party, the contracting party is obliged to pledge its claim against the party to whom it has resold the products to Sunshower B.V.
- The assembly of the goods shall take place at the expense and risk of the contracting party. The electronic installation may only be carried out by a specialised company, taking into consideration the legal directives and the national regulations concerning the installation. Furthermore, the contracting party is obliged to observe the installation instructions provided by Sunshower B.V.
- If not expressly agreed otherwise in writing, payment of the agreed price will be made as follows: The full payment must have been received by Sunshower B.V. before delivery is made.
- All payments shall be made without any discount, offsetting of any amounts or suspension.
- If the contracting party fails to pay within the agreed period, he shall be in default by operation of law, without any prior notice of default being required, and Sunshower B.V. shall be entitled to charge the contracting party an interest at a rate of 3% above the statutory rate from the due date for the payment, without prejudice to its other rights.
- In case of liquidation, bankruptcy or suspension of payment of the contracting party, his obligations shall become immediately due and payable.
- The costs, both in and out of court, resulting from non-performance, late performance or improper performance of the obligations of the contracting party shall be for the account of the contracting party. If the contracting party fails to pay any amount due to Sunshower B.V., or fails to do so on time, the extra-judicial costs between the parties will be determined in advance at an amount equal to 15% of the amount due, yet with a minimum of € 500.
- A payment made by the contracting party will first be applied to settle all costs and interest due and finally to settle any due and payable invoices that have been outstanding the longest, even if Sunshower B.V. states that the payment relates to later invoices.
- Upon delivery of the goods, Sunshower B.V. is no longer liable for any defects in the goods, unless the contracting party is entitled to appeal to the following guarantee provisions.
- With due observance of the limitations stated below and other limitations and exclusions appearing from these Terms and Conditions, Sunshower B.V. guarantees the soundness of the delivered products and the additional work performed by Sunshower B.V. for a period of 24 months, calculated from the date of delivery of the products. Sunshower B.V. does not guarantee the results to be achieved with the products or the effectiveness of the products.
- Any defects, which the contracting party proves to have developed within the said guarantee period, exclusively or predominantly as a direct consequence of an inaccuracy in the design by Sunshower B.V., or as a result of poor workmanship or use of inferior materials, shall be repaired by Sunshower B.V. free of charge. The contracting party shall at all times provide Sunshower B.V. with an opportunity to rectify any defect. Notwithstanding the provisions of the first paragraph of this Article, Sunshower B.V. shall not provide any guarantee on materials and/or goods purchased from third parties for Sunshower B.V. beyond the guarantee provided to Sunshower
B.V. by the relevant supplier or manufacturer.
- Sunshower B.V.’s obligations under these guarantee provisions shall at all times be limited to replacement or repair of the product concerned or to payment of the costs involved in such repair. The choice of the different possibilities will be made by Sunshower B.V. The contracting party must ensure that Sunshower B.V. is given the opportunity to fulfil these obligations.
- The product with regard to which an appeal is made to the guarantee may only be returned by the contracting party with the prior consent of Sunshower B.V. A product that is returned, but is not found to be defective, will be returned to the contracting party at the expense of Sunshower B.V., whereby the contracting party will also have to pay the costs of the investigation conducted by Sunshower B.V. in response to the complaint.
- Sunshower B.V.’s guarantee does not apply if the defects are (partly) the result of normal wear and tear, improper or incorrect installation, improper or incorrect handling or use, improper or incorrect maintenance or if the product is used for purposes other than normal use, or is not used properly, or if the contracting party or the customer of the contracting party or subsequent customers or the end user has not strictly complied with the operating instructions provided by Sunshower B.V. It is therefore the contracting party’s responsibility to ensure that subsequent links in the supply chain comply with the operating instructions.
- If, for any reason whatsoever, Sunshower B.V. is unable to deliver components of the products to replace the delivered product components under the guarantee, the guarantee obligations shall, if it may be reasonably assumed that the inability to deliver is of a temporary nature, be suspended until the impediment to delivery has been removed, whereas, if it may be reasonably assumed that the impediment is of a permanent nature, Sunshower B.V. shall reimburse the monetary value of the components, being the original cost price paid by Sunshower B.V. for these or similar parts of goods.
- Any claims by the contracting party regarding visible defects must be submitted in writing in the case of delivery of goods within 24 hours of delivery, failing which any claim under the guarantee in respect of these defects shall be cancelled. Claims concerning non-visible defects must be made by the contracting party within two days of their discovery by registered letter, stating the reasons, failing which any claim under the guarantee concerning these defects shall also be cancelled.
- Furthermore, any claim under the guarantee shall be cancelled:
a. if the installation of the product at the end user's premises is not carried out by a specialised company;
b. if the contracting party has not given Sunshower B.V. the opportunity promptly to investigate the complaint and to remedy any defects;
c. the contracting party has not, not properly or not timely fulfilled any obligation arising from the agreement concluded with Sunshower B.V. or from other agreements concluded with Sunshower B.V.
d. if the end user of the products does not comply with the user instructions supplied by Sunshower B.V.
- After repair or replacement under this guarantee scheme, the guarantee period will not be extended and ends when the original period would have ended.
- In order to be able to appeal to the rights ensuing from the aforementioned articles, the contracting party must:
- immediately notify Sunshower B.V. of the defects found in writing
- demonstrate in respect of Sunshower B.V. that the defects are attributable to the inferior quality or faulty execution of the work, or - if and to the extent the design of the work originates from the supplier - are the direct result of a culpable error on the part of Sunshower B.V;
- provide all cooperation to enable Sunshower B.V. to remedy the defects within a reasonable period.
- Sunshower B.V.’s liability under the agreement is explicitly limited to compliance with the guarantee obligations described in the previous section of these terms and conditions. Any claim for damages, or for performance, other than a claim for substitute damages for non-performance of these guarantee obligations, is excluded. Any claim, on any basis whatsoever, for trading loss or other indirect damage is also excluded.
- Where Sunshower B.V. provides advice, it shall be liable for damage directly resulting from a demonstrable and imputable failure on its part in respect of such advice if and to the extent that the failure should have been avoided under the given circumstances and with the standard professional knowledge and due care, up to the amount of the separately stipulated fee for the advice. Sunshower B.V. bears no liability in other cases and for other damage resulting from advice provided.
- In the event of any wrongful act on the part of Sunshower B.V. or its employees or subordinates, for which Sunshower B.V. can be held legally liable, Sunshower B.V. shall only be liable for compensation of damage resulting from death or physical injury and for other damage to the extent caused by intent or gross negligence.
- To the extent that Sunshower B.V. is required to pay any amount on account of liability, such amount shall be limited to the amount paid out under the professional liability insurance in the matter concerned.
- Sunshower B.V.’s liability on account of unlawful acts other than those referred to in Articles 10.3 and 10.4 is expressly excluded.
- The contracting party is not entitled to suspend its obligations in respect of Sunshower B.V. The contracting party shall not be entitled to dissolve, annul, modify, or terminate an agreement, in whole or in part, pursuant to Book 6, Section 230, paragraph 2 of the Dutch Civil Code, or to dissolve it, in whole or in part, on account of unforeseen circumstances pursuant to Book 6, Section 258 of the Dutch Civil Code.
- All intellectual or industrial property rights on the products to be delivered under the agreement and on related designs, documentation, reports, offers, as well as preparatory materials, are vested exclusively in Sunshower B.V.
- All documents to be provided by Sunshower B.V. to the contracting party, such as reports, agreements, etc., are intended solely for the use of the contracting party and may not be reproduced, disclosed, or disclosed to third parties by the contracting party without the prior written consent of Sunshower B.V.
- The contracting party is not permitted to remove any indication of intellectual property rights from the products or the packaging of the products.
- The contracting party shall treat all information received from Sunshower B.V. as confidential and shall keep the information confidential, unless the nature of the information obtained is intended for public disclosure.
- Sunshower B.V. guarantees that the goods produced and delivered by Sunshower B.V. do not, as such, infringe any intellectual property rights of third parties. If it is irrevocably established that any item delivered by Sunshower B.V. infringes any intellectual property rights of a third party, Sunshower B.V. shall, at its option and in consultation with the contracting party, replace the item in question by an item that does not infringe the respective right or acquire a right of use from the third party referred to above or return the purchase price to the contracting party. Sunshower B.V. shall not be liable in respect of the contracting party beyond the application of one of these three options.
- In these terms and conditions, force majeure means any circumstance beyond Sunshower B.V.’s control, even if it was foreseeable at the time of conclusion of the agreement, which may permanently or temporarily prevent performance of the agreement, and, to the extent not already included, war, threat of war, civil war, riots, strikes, lockouts, transport difficulties, fire, weather conditions preventing work to be carried out, and other disruptions in the business operations of Sunshower B.V. or its suppliers.
- If an agreement cannot be executed due to force majeure, Sunshower B.V. has the right to either suspend the performance of the agreement with immediate effect or to terminate the agreement in whole or in part, without Sunshower B.V. being liable to pay any damages.
- If the contracting party fails to meet any of its obligations in respect of Sunshower B.V., or fails to do so properly or on time, makes debt arrangements with its creditors, files for suspension of payments, is declared bankrupt, terminates or disposes of its business or (if it is a company) is dissolved, dies, is placed under legal restraint or administration, its movable or immovable property is attached for its account, or the contracting party legally or factually moves its residence abroad, or if, after entering into the agreement, Sunshower B.V. becomes aware of any other circumstances causing good reason to fear that the contracting party will not be able to meet its obligations, the contracting party shall be deemed to be in default by operation of law and Sunshower B.V. shall be entitled to suspend further performance of the agreement without any notice of default or judicial intervention being required and/or to dissolve the agreement in whole or in part, all of this without prejudice to Sunshower B.V.’s right to claim damages.
- Sunshower B.V.’s exercise of its rights and the time and/or the order in which Sunshower B.V. does so, is at the discretion of the Sunshower B.V. The non-exercise of rights by the Sunshower B.V. can never be interpreted as a waiver or as processing rights.
- In respect of third parties, the contracting party undertakes to observe confidentiality with regard to all drawings, illustrations, descriptions, calculations, models, specifications, specifications, instructions, offers, certificates, working methods, schedules and other business information in the broadest sense of the word, originating from Sunshower B.V., of which it has knowledge with respect to the performance of its obligations. After the order has been fulfilled or the obligations under this agreement have been met, the above-mentioned items will be returned to Sunshower B.V. by the contracting party at first request.
- If the contracting party violates the obligations referred to in Article 14.1, the contracting party shall forfeit to Sunshower B.V., irrespective of whether the breach is attributable to the contracting party and without prior notice of default or judicial proceedings, for the benefit of Sunshower B.V. an immediately payable penalty of €10,000 for each breach and, in addition, an amount of €5,000 for each day that the breach continues, without the need to establish any form of damage and without prejudice to Sunshower B.V.’s other rights, including its right to claim damages in addition to the penalty.
- If any provision of these terms and conditions is found by the court to be unreasonably onerous, in whole or in part, it shall be deemed to have been converted into a provision which is to the greatest extent possible, while preserving its content and purport, not deemed unreasonably onerous.
- In the event that any article of these terms and conditions is found by the court to be unreasonably onerous and article 15.1 cannot be applied, this shall not affect the validity of the remaining articles of these terms and conditions.
- The offers and/or agreements to which these general terms and conditions apply in full or in part are governed by Dutch law, unless the parties have agreed on any provisions to the contrary in writing. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
- Contrary to the legal rules regarding the competence of the civil court, any dispute between Sunshower B.V. and the contracting party shall be settled by the competent sector of the District Court of The Hague. However, Sunshower B.V. retains the right to bring proceedings against the Contract Party before the court having jurisdiction under the law or the applicable international treaty.