General Terms and Conditions
version october 2024
General terms and conditions of Nijland Cycling B.V. established in (8111 CM) Heeten, at Telgenweg 12. Nijland Cycling B.V. is registered with the Chamber of Commerce under number 38020120.
Definitions
- Nijland Cycling: the private limited liability company Nijland Cycling; Contractor; and the party from which the Other Party purchases the service or product and thus also the user of these General Terms and Conditions. Nijland Cycling acts, under circumstances, under the trade name Cargo Cycling. In such cases, these General Terms and Conditions shall expressly apply.
- Other Party (c.q. Buyer): a natural person or legal entity acting in the exercise of its profession/company; and purchases services and/or work and/or products from Nijland Cycling or places an Order with Nijland Cycling; Client.
- Offer: any offer made by Nijland Cycling B.V. whether in the form of a written quotation or in any other agreed form;
- Agreement: the agreement or agreements, both oral and written, regarding what service or product, Nijland Cycling will perform for what fee and under what conditions. In other words: the agreement between Nijland Cycling and the Other Party.
- Quotation: the Offer or Quotation by Nijland Cycling to a natural person or legal entity with which it is intended to enter into an agreement. This may be done in writing or orally;
- General Conditions: the present General Conditions within the meaning of Article 6:231 of the Dutch Civil Code.
- Parties: Counterparty and Nijland Cycling together.
Article 1: Applicability
- These General Terms and Conditions apply to all legal relations between Nijland Cycling and the Other Party, as well as to all Quotations, Offers and Agreements and the resulting supplies of services and/or products or other legal acts between Nijland Cycling and the Other Party.
- The applicability of general or specific terms and conditions used by the Other Party is hereby expressly rejected, unless the Parties agree otherwise.
- Clauses that deviate from the provisions contained in these General Terms and Conditions only apply if and insofar as they have been agreed in writing with Nijland Cycling and have been accepted as such by Nijland Cycling . The agreed deviations from these General Terms and Conditions only apply to the Agreement in question and the Other Party cannot derive any rights from the agreed deviations from these General Terms and Conditions for future Agreements with Nijland Cycling.
- If and to the extent that any provision of the terms and conditions is declared null and void or annulled, the remaining terms and conditions shall remain in full force and effect.
- In that case, the parties will agree on a new provision, in which the scope of the void/annulled provision is aligned as much as possible.
- Nijland Cycling is entitled to unilaterally modify these Terms and Conditions.
- Situations not covered by these Terms and Conditions are to be judged "in the spirit" of these Terms and Conditions.
Article 2: Quotation, offers and formation of the agreement
- All offers, quotations and/or quotations, are - unless expressly agreed otherwise - entirely without obligation and may be revoked by Nijland Cycling at any time, unless otherwise indicated in the quotation by Nijland Cycling .
- Prices never apply automatically to future offers or quotations.
- The Agreement is established by acceptance of the offer by the Other Party.
- The written order confirmation shall be deemed correct and approved, unless objections are received in writing from the Other Party within 8 days of its dispatch by Nijland Cycling .
- A composite quotation or price quote does not oblige Nijland Cycling to supply part of the products or perform part of the service at a corresponding part of the quoted price.
- If the offer is based on information provided by the Other Party and this information proves to be wholly or partially incorrect or incomplete or subsequently changed, Nijland Cycling is entitled to adjust the prices or delivery dates stated in the offer.
- Nijland Cycling can never be held to an offer (or agreement) if the Other Party should have understood by the standards of reasonableness and fairness that the offer contained an obvious mistake or clerical error.
Article 3: Execution of the Agreement
- Nijland Cycling shall perform the Agreement, which is to be considered a best efforts obligation, to the best of its knowledge and ability, in accordance with the requirements of good workmanship.
- The Other Party undertakes to provide Nijland Cycling with all information that is desirable or necessary for Nijland Cycling for the performance of the services and delivery of products or of which the Other Party knows, or should know, that this information is necessary for Nijland Cycling for the correct and timely performance of the agreed work.
- If the items and data required for the execution of the Agreement are not provided in time to Nijland Cycling and/or if the items required for the execution of the Agreement do not function or do not function properly, Nijland Cycling has the right not to commence execution of the Agreement or to suspend the execution of the Agreement and/or to charge the Other Party for the extra costs (additional costs) resulting from the delay.
- If Nijland Cycling requires a deposit from the Other Party and this has not yet been received by Nijland Cycling , Nijland Cycling reserves the right to suspend performance of the Agreement until such time as the requested deposit is received by Nijland Cycling .
- Nijland Cycling is free to engage third parties in whole or in part for the performance of the Agreement or to have the Agreement performed in whole or in part by (a) third party (parties).
Article 4: Changes to the Agreement.
- If, after the agreement has been entered into, changes are still required in its execution, these must be notified to Nijland Cycling in good time and in writing. If said changes are communicated verbally or by telephone, the risk for the correct implementation of such changes will be borne by the Other Party.
- Nijland Cycling reserves the right, based on changes in the agreement, to make any change in price.
- In the event of changes to an agreement already entered into, Nijland Cycling is entitled to extend the delivery time accordingly without the consent of the other party.
Article 5: Delivery
- Unless otherwise agreed, the purchased, c.q. processed, c.q. tested, c.q. delivered is at the risk of the Other Party from the conclusion of the (purchase) agreement. Unless otherwise agreed, delivery shall be made to the home/company or forwarded address of the Other Party.
- An agreed delivery date is not a deadline, but only a target date. In the event of late delivery, the Other Party must give Nijland Cycling written notice of default.
- Nijland Cycling is permitted to deliver sold, c.q. processed, c.q. tested goods in parts. If the items are delivered in parts, Nijland Cycling is authorized to invoice each part separately.
- The Other Party is responsible for ensuring that the (delivery) address referred to in article 5.1 is correct. If the Other Party fails to do so, any costs of additional work will be for its account.
Article 6: Warranty
- Nijland Cycling guarantees that the items it delivers meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use.
- No warranty on parts or attachments procured from third parties will be provided by Nijland Cycling for longer than such third party supplier provides to Nijland Cycling , with a maximum of 24 months.
- In the event of a breach of the aforementioned warranty, Nijland Cycling 's liability is limited to repairing or replacing the item delivered free of charge or refunding the price charged for it, at the discretion of Nijland Cycling.
- The claim to warranty lapses if the breach of warranty has its cause in any form of wear and tear or parts subject to consumption of the delivered good. The claim to warranty also lapses if the breach of warranty is the result of improper handling by the Other Party and/or third parties engaged by it. Improper handling is understood to mean, among other things: inexpert use, careless installation, careless maintenance and/or if the delivered good has been stored carelessly and/or the user instructions of the manufacturer have not been followed. The claim to guarantee will furthermore lapse if the Other Party and/or third parties engaged by it perform work and/or make changes to the delivered good. Finally, the claim to warranty lapses if the Other Party is in default of payment or otherwise fails to fulfill its obligation(s) under the agreement.
- In accordance with the provisions of the previous paragraph, the Other Party is responsible for proper maintenance of the delivered good. If the Other Party has any doubts about the manner of maintenance, the Other Party must contact Nijland Cycling.
- In the event of a valid warranty claim, the Other Party shall not be entitled to suspend one or more of the Other Party's obligations under the agreement.
Article 7: Defects; complaint periods
- The Other Party must examine the purchased, c.q. processed, c.q. tested goods upon delivery - or as soon thereafter as possible - or have them examined, or carry out this inspection. Hereby the Other Party must check whether the delivered goods comply with the agreement:
- Whether the right items have been delivered
- Whether the delivered items correspond in quantity (for example, the number and quantity) to what was agreed upon;
- If any visible defects or shortages are found, the Other Party must report them to Nijland Cycling in writing within 14 days of delivery.
- Without prejudice to Article 6, the Other Party must report non-visible defects to Nijland Cycling in writing within 14 days of discovery.
- In the event of a visible or non-visible defect, the Other Party shall not be entitled to suspend one or more of the Other Party's obligations under the contract.
- Exceeding any aforementioned period shall result in the forfeiture of any claim of the Other Party against Nijland Cycling in respect of non-conformity.
Article 8: Intellectual property rights
- The intellectual property rights of Nijland Cycling on everything that Nijland Cycling provides to the Other Party in the execution of the agreement between Nijland Cycling and the Other Party, including in any case drawings, images, calculations, processes, models remain vested in Nijland Cycling and may only be used by the Other Party for the execution of the agreement between Nijland Cycling and the Other Party.
- If intellectual property rights arise in the performance of the agreement between Nijland Cycling and the Other Party, the intellectual property rights, including copyright, will rest with Nijland Cycling. Insofar as the intellectual property rights come to rest with the Other Party by virtue of the law, the Other Party transfers these intellectual property rights to Nijland Cycling in advance and, if necessary, the Other Party will lend its cooperation to this transfer and furthermore grants an irrevocable power of attorney in advance with which Nijland Cycling can do all that is necessary so that the intellectual property rights come to rest with Nijland Cycling . To the extent permitted by law, the Other Party waives any personality rights that remain vested in the Other Party, or the Other Party undertakes not to exercise these personality rights in the course of trade.
- If Nijland Cycling grants the Other Party a right of use, it is always on the basis of a non-exclusive and non-transferable license, which is limited to the agreed use. In the absence of a prior agreed period of use, the right of use of the Other Party's intellectual property rights is in any event limited to the duration of the agreement between Nijland Cycling and the Other Party, or for the duration during which the Other Party purchases products from Nijland Cycling . A license of Nijland Cycling may be terminated at any time with immediate effect, without Nijland Cycling owing the Other Party any form of compensation.
Article 9: Retention of title
- The goods delivered by Nijland Cycling remain the property of Nijland Cycling until the other party has fulfilled all the following obligations from all (purchase) agreements concluded with Nijland Cycling :
- the consideration(s) relating to item(s) delivered or to be delivered itself,
- the consideration(s) relating to services performed or to be performed by Nijland Cycling pursuant to the (purchase) agreement(s),
- any claims for non-performance by the other party of (a) (purchase) agreement(s).
- The other party is not authorized to pledge the delivered goods that are subject to retention of title pursuant to paragraph 1 or to establish any other (commercial) right on them.
- If the other party fails to meet its payment obligations to Nijland Cycling or Nijland Cycling has good reason to fear that it will fail to meet those obligations, Nijland Cycling is entitled to repossess the goods delivered under retention of title at its own discretion and without any liability to the other party. The other party grants Nijland Cycling and its employees permission in advance to enter the grounds and buildings of the other party to take back the goods. This applies without prejudice to Nijland Cycling 's right to compensation for damages, lost profits and interest and the right to dissolve the agreement without further notice of default, by written notification.
- If third parties wish to establish or assert any right to the goods delivered under retention of title, the Other Party is obliged to inform Nijland Cycling as soon as can reasonably be expected
Article 10: Prices and payment
- Unless otherwise stated, our prices are exclusive of VAT and transport costs and other levies imposed by the government and other costs and expenses.
- If Nijland Cycling agrees with the Other Party on a certain price, Nijland Cycling is nevertheless entitled to increase the price in case of changes in materials, wages, premiums of any kind, taxes and/or other factors, which determine the price of the purchased goods, necessary for the execution of the agreement.
- Nijland Cycling may charge the price applicable at the time of delivery according to its price list valid at that time. If the price increase exceeds 10%, the Other Party has the right to dissolve the agreement.
- Payment must be made within 14 days of the invoice date. This payment term is a strict deadline. The Other Party shall owe interest equal to the statutory commercial interest on the amount due from the moment of default.
- Payment shall be made without discount or setoff. The other party is not entitled to invoke suspension.
- Payments made by the Other Party will always serve to settle firstly all interest due, secondly the costs, and thirdly the longest outstanding payable invoices, even if the Other Party states that the payment relates to a later invoice.
Article 11: Liability
- Nijland Cycling expressly excludes any liability and/or strict liability for direct damage, indirect damage, consequential damage, trading loss, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, mutilation or loss of data, damage to crops and all other forms of direct and/or indirect damage caused by Nijland Cycling, its subordinates, its hired auxiliary persons and/or its business, unless the damage is the result of intent or conscious recklessness.
- Should the exclusion of liability in the previous paragraph not hold, the compensation for damages shall be limited to once the invoice amount (excluding VAT) for the work from which the liability arises, or at least in connection with which the liability arose.
- Compensation for damages shall in any event be limited to the amount paid out under Nijland Cycling 's liability insurance policy in the case in question, to be increased by the amount of the deductible that will be borne by Nijland Cycling pursuant to the applicable insurance agreement in the case in question.
- The other party will fully indemnify Nijland Cycling on first request for all third party claims against Nijland Cycling in respect of any fact for which liability is excluded in these General Terms and Conditions.
- The other party can never make a - successful - claim for warranty or hold Nijland Cycling liable if any of the following situations occur:
- The other party has used the delivered item inexpertly or used it contrary to its intended use;
- The other party has used the item in violation of advice and/or instructions provided;
- The other party has failed to maintain the delivered item;
- Counterparty provided incorrect or incomplete information;
- The other party has independently made modifications to the delivered item without the express consent of Nijland Cycling.
Article 12: Force Majeure
- Force majeure means circumstances that prevent performance of the commitment and cannot be attributed to Nijland Cycling . These will include (if and to the extent that these circumstances make performance impossible or unreasonably difficult): (i) failure of suppliers of Nijland Cycling to deliver on time , (ii) defectiveness of goods, equipment, software or materials of third parties which Nijland Cycling uses, (iii) government measures, (iv) electricity failure, (v) war, (vi) occupation, (vii) strike, (viii) general transport problems, (ix) an outbreak of a disease and (x) the unavailability of one or more staff members of Nijland Cycling for whatever reason.
- Nijland Cycling also has the right to invoke force majeure if the circumstance preventing (further) performance occurs after Nijland Cycling should have fulfilled its commitment.
- During force majeure, the delivery and other obligations of Nijland Cycling are suspended. Only if the period in which fulfillment of the obligations by Nijland Cycling is no longer possible due to force majeure lasts longer than 2 months, both parties are authorized to dissolve the agreement, without any obligation to pay damages in that case.
- If Nijland Cycling has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfill its obligations, it is entitled to separately invoice the part already delivered or the deliverable part and the Other Party is obliged to pay this invoice as if it were a separate contract. However, this does not apply if the part already delivered or the deliverable part has no independent value.
Article 13: Transfer of risk
- The risk of loss, damage and/or decrease in value of an item shall at all times pass to the Other Party from the moment the item is brought under the Other Party's control - by means of a delivery, for example.
Article 14: Right of withdrawal
- For cases involving a distance purchase, consumers' right of withdrawal is expressly excluded for the following cases:
- All items manufactured according to the specifications of the Other Party, which are not prefabricated and which are manufactured on the basis of an individual choice or decision of the Other Party, or which are clearly intended for a specific person.
- During any reflection period, the Other Party is obliged to handle the delivered item with care.
Article 15: Dissolution
- If Nijland Cycling fails at any time to comply with its obligations, the Other Party is at all times obliged to grant Nijland Cycling a reasonable period of time to still perform.
- Without Nijland Cycling being legally in default, the Other Party can never dissolve the agreement.
Article 16: Dispute resolution and applicable law.
- These General Conditions, offers and quotations, agreements and/or other legal acts are governed by Dutch law.
- All disputes arising from or related to a legal relationship between Nijland Cycling and the Other Party to which these General Terms and Conditions apply shall be settled exclusively by the competent court of the district of Zwolle.