GENERAL TERMS AND CONDITIONS ULTIMO PARRI B.V.
DEFINITIONS
Definition | Meaning |
Agreement | any agreement between Ultimo Parri and the Client, any alteration or amendment thereto, as well as any (legal) acts in preparation of the Agreement or in relation to the execution thereof. An Agreement will generally consist of a signed Purchase Order. |
Article | An article of these General Terms |
Client | the counterparty of Ultimo Parri, including any possible third parties involved by or through the Client |
Communication | any materials, information or other communication transmitted or posted by the Client to a Ultimo Parri website or provide to Ultimo Parri under this Agreement |
General Terms | these General Terms and Conditions of Ultimo Parri |
Party | either Ultimo Parri or the Client, and “Parties” means Ultimo Parri and the Client together |
Product | tangible products (including any documentation) made and/or delivered by Ultimo Parri under the Agreement |
Purchase Order | a document signed by the Client committing to the purchase from Ultimo Parri of one or more Products and/or related services |
GENERAL PROVISION
1 - Applicability
1.1
These General Terms are applicable to all Agreements, including offers, orders, quotations, demo’s, samples and/or requests thereto and all other (legal) acts in relation to the sale, distribution, installation, maintenance and/or any other acts in relation to the Products.
1.2
General conditions used or applied by the Client are hereby expressly rejected and shall not be applicable to any Agreement, unless expressly stipulated otherwise and agreed upon in writing by Ultimo Parri. If – notwithstanding the foregoing – both these General Terms and the Client’s general terms and conditions apply, these General Terms shall prevail in case of a discrepancy or conflict between those general terms.
1.3
Ultimo Parri reserves the right to unilaterally change its General Terms at any time. Any such change will be announced within a reasonable term in advance by Ultimo Parri and will take effect as per the date confirmed by Ultimo Parri.
1.4
By entering into an Agreement, the Client accepts and acknowledges these General Terms.
1.5
These General Terms in connection with the Agreement contain all rights and obligations of the Parties and supersedes any and all prior agreements, statements and/or (legal) acts between the Parties, whether in writing or not. In case of conflict between these General Terms and the Agreement, the terms of the Agreement prevail.
1.6
In case applicable mandatory statutory (protection) regulations would prevail over these General Terms or the Agreement or make them void, clause 1.7 applies.
1.7
If any of these General Terms shall be null and/or void or if one or more General Terms are annulled, this shall have no consequences for the applicability of the other General Terms. Should such situation occur, then Parties shall agree on new terms in replacement of such annulled or null or void General Term(s), which shall be consistent with the purpose and purport of the annulled or null or void General Term(s).
1.8
These General Terms have been made available to the Client and shall again be made available to the Client at first request.
1.9
An Agreement is entered into by ordering a Product, either in writing, electronically or orally, or by accepting and using the Product.
2 - Samples, models and examples
2.1
If a sample, model or example is shown or provided by Ultimo Parri, it is only shown or provided by way of indication: unless it is expressly stated otherwise, the Products may differ from the sample, model or example.
3 - Purchase orders
3.1
To place an order, the Client shall sign a Purchase Order stating at minimum the specific type and quantity of Products that it wants to purchase, billing address, shipping address, any custom work or materials and the price. The Purchase Order can include other information such as an estimated date of delivery.
3.2
Products are custom made and made to order which means they cannot be returned.
3.3
If and when a Purchase Order is signed by the Client, an Agreement will be formed that – other than the right in clause 3.4 - cannot be cancelled, revoked, annulled or terminated other than stipulated in the Agreement and these General Terms.
3.4
At its own discretion, Ultimo Parri may reject a Purchase Order. Such rejection including its reason shall be sent to the Client in writing as soon as possible after receipt of the signed Purchase Order by Ultimo Parri.
3.5
Ultimo Parri is processing personal data inter alia in the performance of Agreements in accordance with its privacy policy that is available on Ultimo Parri’s website.
4 - Order changes and cancellations
4.1
Any changes to the order or Agreement, either as a result of special instructions from the Client or because the information provided by the Client does not correspond to the actual execution of the work, will be considered additional work insofar as this results in additional costs. Ultimo Parri will be entitled to charge the Client for any additional work within reason.
4.2
A Purchase Order or Agreement may not be (partly) amended, revoked, cancelled, or suspended by the Client, except with the written approval of Ultimo Parri. The effective date of such amendment, revocation, cancellation or suspension shall be the date of its written acceptance by Ultimo Parri. In this event, the Client shall reimburse to Ultimo Parri any direct or indirect costs or expenses incurred by Ultimo Parri and any lost or missed profits as a result of such amendment, cancellation, revocation or suspension.
5 - Obligations of the Client
5.1
Unless otherwise agreed in writing, Client is obliged to ensure:
5.1.1 - that the information it provides to Ultimo Parri is true, complete and correct;
5.1.2 - that the Client or its representative is present at the agreed date, time and place of delivery;
5.1.3 - that, if a hoist, elevator or crane has to be used, the opportunity for this is available. Any damage caused by this will be at the expense of the Client, unless it is established that Ultimo Parri is proven to be at fault.
6 - Delivery
6.1
Unless expressly agreed otherwise, delivery shall be made from Ultimo Parri's warehouse and transport shall take place for the account and risk of the Client. Prices listed on Ultimo Parri’s website exclude cost of transportation and storage.
6.2
If the delivery address is located outside Europe, it is possible that additional levies, such as VAT and import tax are charged. Such additional expenses are not included in the prices quoted by Ultimo Parri. Ultimo Parri has no influence or control over such levies and can therefore not provide any further information. It is the Client’s own responsibility to check if the ordered Products can be exported and imported to the country in question and what the costs are, before placing such an order.
6.3
For shipments outside Europe it may happen that a package will be kept at customs for inspection. The inspection could take up to 30 days to send the package forward to the delivery address. If the Client hasn’t received the Products after the customs clearance time, Ultimo Parri will start an investigation into the shipment.
6.4
Ultimo Parri undertakes towards the Client to package the Products properly and to secure them in such a way that they can reach their destination in good condition during normal transport.
6.5
If Client refuses to accept a delivery or is negligent in providing information or instructions necessary for delivery, this will not release him from the obligation to make full payment for the Products to be delivered, and the Products will be transported and stored at the risk and expense of the Client.
6.6
None of the (delivery) periods stated or agreed by Ultimo Parri are final deadlines. Ultimo Parri has a best effort obligation to honor the (delivery) periods as much as possible. Ultimo Parri shall not be bound by a (delivery) date or (delivery) period, final or otherwise, if the Parties have agreed on a change to the content, conditions or scope of the Agreement (additional work, change in specifications etc.). Ultimo Parri shall inform the Client as soon as possible in case a delivery period is (expected to be) exceeded.
6.7
Ultimo Parri shall not be in default as result of the fact that a delivery period or date, final or otherwise, has not been met until such time as the Client has given written notice of default with a reasonable period for Ultimo Parri to deliver the Products.
6.8
Ultimo Parri shall be permitted to deliver sold Products in parts. This shall not apply if a partial delivery has no independent value. If the Products are delivered in parts, Ultimo Parri shall be entitled to invoice each part separately.
7 - prices and payment
7.1
All prices communicated by Ultimo Parri shall be in Euros and excluding VAT and other government levies or administration, installation, duties or custom fees, transport or dispatch costs, unless expressly stated otherwise in the Agreement. Ultimo Parri reserves the right to implement price changes and/or to correct typing of printing errors regarding prices.
7.2
Unless otherwise agreed in writing, the price for the Products shall be payable (and shall be invoiced by Ultimo Parri) on the following dates:
7.2.1 - 50% of the agreed price immediately after the date of the order confirmation.
7.2.2 - 50% of the agreed price four weeks before the planned date of delivery of the Products.
7.3
In case Ultimo Parri charges additional fees or expenses (e.g. in case of a change to the order), 50% of the additional fees or expenses shall by payable and invoiced on the date on which the work for the additional cost or expenses are accepted or confirmed by Ultimo Parri. The remainder is payable on the same date as the second half of the price is invoiced (as mentioned in clause 7.2.2). If the additional fees or expenses arise within four weeks of the planned delivery date of the Products, the full amount is immediately payable.
7.4
Ultimo Parri shall provide the Client with a clear invoice stating the Products and its prices.
7.5
Payments to be made by the Client to Ultimo Parri shall be made within the payment term on the invoice in EUR or a currency detailed in the invoice. In the absence of a payment term on the invoice, the payment term is 14 days.
7.6
In the event that (unforeseen) circumstances arise between the date of entering into the Agreement and performance thereof, which circumstances increase the cost or expenses of Ultimo Parri to manufacture, install and/or deliver the Products and have not been included in the agreed prices, Ultimo Parri shall be entitled to unilaterally raise its prices to cover the increased cost or expenses.
7.7
Any amount due shall be paid by the Client without any deduction, set-off or counterclaim. The Client shall not have the right to suspend payment. If any amount due under the Agreement and these General Terms has not been received within the period mentioned in the Agreement or in these General Terms, the Client shall be in default without any further notice being required.
7.8
As from the moment of default, the Client shall be liable for statutory interest as well as any and all costs of (extra)legal costs in relation to the collection of payments by Ultimo Parri. The extrajudicial costs shall be deemed to amount to a minimum of 20% of the amount invoiced, with a minimum of EUR 250 depending on the agreed currency. Ultimo Parri shall provide all invoices either by e-mail or by regular post to the Client.
7.9
If any payment due by Client is 30 days or more overdue, Ultimo Parri may, without limiting its other rights and remedies, suspend the delivery of the Products until any due amounts are paid in full.
7.10
Except as otherwise specified in the Agreement, all notices will be made via email and will be effective upon the first business day of sending by email. Billing-related notices to the Client will be addressed to the relevant billing contact designated by Client.
8 - Retention of title
8.1
The Products remain Ultimo Parri's property until the Client has fulfilled all the obligations under the Agreement.
8.2
Products delivered by Ultimo Parri which, pursuant to paragraph 1, are subject to retention of title, may not be sold. Furthermore, Client is not authorised to pledge the Products or establish any other right to them.
8.3
If third parties wish to establish or enforce any right on the Products subject to retention of title, the Client is obliged to immediately inform Ultimo Parri in writing.
9 - WARRANTY, defects and claim period
9.1
Subject to the other provisions of these General Terms, Ultimo Parri warrants only that the Products, at the time of delivery, meets the product specifications and that it has the properties that have been confirmed in writing by Ultimo Parri to the Client before or at the time of the conclusion of the Agreement. Any other statutory or implied warranty is excluded insofar legally possible. It is explicitly stated that, except if agreed in writing, the Products do not comply with any industry norms or standards (such as NEN 527).
9.2
Small deviations in quality, color, size, weight, appearance and the like, which are not to be avoided, are permitted and do not form a basis for complaints or compensation for the Client.
9.3
The Client must examine the Products, or have them examined, on delivery or as soon as possible thereafter. In doing so, the Client must check whether the Products correspond to what was agreed, i.e:
9.3.1 - whether the correct items have been delivered
9.3.2 - whether the Products meet the agreed quality requirements or - if these are lacking - the requirements that may be set;
9.3.3 - the requirements which may be set for normal use of the Products.
9.4
If visible defects are discovered, the Client must report these in writing to Ultimo Parri within twenty days of delivery. Non-visible defects must be reported to Ultimo Parri within fourteen days after the defect is discovered or reasonably should have been discovered. Failure to report defects in time results in the Client’s forfeiture of any right or entitlement to any remedy (e.g. repair, replace, damages).
9.5
Complaints relating to (the amount of) the invoice of Ultimo Parri must be reported to Ultimo Parri in writing within fourteen days of the invoice date, otherwise the invoice is deemed to be accepted by the Client.
9.6
Claims relating to defects in the Products shall lapse one year after the date of delivery (the warranty period).
9.7
The provisions of this article shall apply accordingly to services performed by Ultimo Parri.
10 - repair of defects
10.1
Defects in Products that occur during the warranty period are resolved by Ultimo Parri at Ultimo Parri’s expense under the conditions in this article.
10.2
Ultimo Parri shall make every reasonably effort to ensure that any defects in the Products, or in parts delivered by Ultimo Parri within the scope of the warranty, are rectified within a reasonable period of time and free of charge if Ultimo Parri receives detailed notification of such defects in time during the warranty period. If Ultimo Parri deems that it is not reasonably possible to rectify the defect, that it will take too long to rectify the defect or that this would involve unreasonably high costs, Ultimo Parri shall be entitled to replace (part of) the Products free of charge with another, similar but not necessarily identical item of hardware. All replaced parts shall be the property of Ultimo Parri.
10.3
The obligation to repair defects in the Products during the warranty period on Ultimo Parri’s expenses excludes:
10.3.1 - repairing defects that the Client accepted when entering into the Agreement;
10.3.2 - repairing defects that are the result of external causes such as fire, water damage, earthquakes, etc.
10.3.3 - repairing defects that can be attributed to the Client;
10.3.4 - repairing defects that are the result of careless, incorrect or incompetent use or use that is contrary to the documentation of the Products;
10.3.5 - repairing defects that are the result of using the equipment in a manner that is contrary to its designated use;
10.3.6 - repairing defects that are the result of unauthorized changes or additions made to the Products.
10.4
If Ultimo Parri repairs the defects referred to in the preceding paragraph or has such defects repaired, the Client shall owe the costs associated with the repair work in accordance with Ultimo Parri’s usual rates.
10.5
The Client’s sole remedy in respect of defects in the Products is repair of the defects as stipulated in this article. If Ultimo Parri is unable to repair or replace the Products, Ultimo Parri’s liability shall under no circumstances surpass the liability limitations stipulated in these General Terms.
11 - Industrial and intellectual property
11.1
Ultimo Parri remains the owner of all industrial and intellectual property rights relating to the Products delivered to the Client and drawings, models, etc. contained therein: these may not, without the prior written permission of Ultimo Parri, be copied or used in any other way.
12 - Limitation of liability
12.1
Neither Ultimo Parri nor its suppliers shall be liable for any damages or unintentional use whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, personal injury or death, or other loss) arising out of the use of or inability to use the Products. The Client shall indemnify, hold harmless, and defend Ultimo Parri and its suppliers from and against any third party claims or lawsuits, including attorney’s fees, that arise or result from the use of or inability to use the Products, including the damages as specified in this article.
12.2
The total liability of Ultimo Parri due to an attributable failure to perform the Agreement or due to any other reasons, shall be limited to compensation of the direct damage or loss to a maximum of the amount paid out in the relevant case by Ultimo Parri’s liability insurance. If, with regard to Ultimo Parri's liability, for whatever reason, no payment is made under its liability insurance, Ultimo Parri’s total liability for one or more events shall be limited to compensation for direct damage to a maximum of 50% of the amount that was paid by the Client for the Products.
12.3
The liability of Ultimo Parri for indirect damage or loss, consequential damage or loss, resulting loss, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims from the Client’s customers shall be excluded. The liability of Ultimo Parri due to the scrambling, destruction or loss of data or documents shall also be excluded.
12.4
The exclusions and restrictions of Ultimo Parri’s liability referred to in this clause shall no longer apply if and in so far as the loss is the result of intentional acts or deliberate recklessness on the part of Ultimo Parri’s management.
12.5
Except where performance by Ultimo Parri is permanently impossible, Ultimo Parri shall only be liable as a result of an attributable failure to perform an Agreement if the Client gives Ultimo Parri immediate notice of default in writing, setting a reasonable term in which the breach can be remedied, and Ultimo Parri still attributably fails to meet its obligations after this period. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that Ultimo Parri has the opportunity to respond adequately.
12.6
The provisions of this clause and all other restrictions and exclusions of liability referred to in these General Terms shall also apply in favour of all (legal) persons that Ultimo Parri engages to execute the Agreement.
13 - Force Majeure
13.1
Ultimo Parri shall not be liable for damages for any failure or delay in the performance of the Agreement resulting from causes beyond its and its subcontractors (if any) reasonable control including, but not limited to, unforeseeable events encountered by Ultimo Parri or its own suppliers such as acts of government, war, epidemics, pandemics, lockdowns, court order, riots, natural disasters, electricity failures, faults affecting the internet, computer network or telecommunication facilities, labor strikes/lockouts and/or (software) viruses (hereafter a “Force Majeure”).
13.2
Ultimo Parri shall give timely notice to the Client of a Force Majeure and shall use all reasonable efforts to avoid or remove the cause and resume performance with minimum delay.
13.3
Ultimo Parri shall also have the right to invoke force majeure if the circumstance preventing (further) performance arises after Ultimo Parri should have fulfilled its obligation.
13.4
If Ultimo Parri has already fulfilled part of its obligations when force majeure arises, or can only partially fulfill its obligations, it will be entitled to separately invoice the part already delivered or deliverable and the buyer/client will be obliged to pay this invoice as if it were a separate contract. This does not apply, however, if the part already delivered or deliverable has no independent value.
14 - Termination
14.1
Either Party is entitled to terminate the Agreement without observing a notice period by serving written notice to the other Party when:
14.1.1 - the other Party has ceased to exist;
14.1.2 - the other Party has been declared bankrupt, has been granted a suspension of payments or has taken a dissolution decision;
14.1.3 - the other Party is in default with respect to its obligation under the Agreement, and that Party has not remedied such default within thirty (30) days after notice of default;
14.1.4 - the other Party is in default and it is permanently impossible to remedy this default;
14.1.5 - the other Party is unable to perform its obligations under the Agreement for a period longer than ninety (90) days due to Force Majeure.
14.2
At the time of termination by Ultimo Parri pursuant to this clause, all amounts owed by the Client shall become immediately due and payable, without further notice of default being required.
15 - Use of website
15.1
The use of Ultimo Parri’s website (“Website”) is subject to the terms and conditions in this article. Ultimo Parri does not guarantee that the website, or any content on it, will always be available or be uninterrupted. Access to the Website is permitted on a temporary basis. Ultimo Parri may suspend, withdraw, discontinue or change all or any part of the website without notice. Ultimo Parri will not be liable if for any reason the Website is unavailable.
15.2
All elements on the Website are owned by or licensed to Ultimo Parri and its affiliates. All elements of the Website including (but not limited to) the general design and the content, can be protected by copyright, moral rights, database rights, trademark and other laws relating to intellectual property rights. Users are authorized to use this material only for personal, non-commercial purposes. Users may not publish, duplicate, distribute or otherwise reproduce the content to others without prior consent from Ultimo Parri.
15.3
Although the Website is compiled with care, the information, texts, documents, graphics, movies, music and/or other services on it may contain errors or be otherwise incorrect or incomplete. Ultimo Parri is not liable for any damages resulting from the use of (or inability to use) the Website, including damages caused by viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any content on it, or on any website linked to it or any incorrectness, or incompleteness of the Website.
16 - Governing law and jurisdiction
16.1
The Agreement and these General Terms shall be exclusively governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG or Weens Koopverdrag) is excluded.
16.2
All disputes arising in connection with the Agreement and/or these General Terms, shall be exclusively submitted to the competent court in Amsterdam, The Netherlands.
16.3
Notwithstanding paragraph 2, Ultimo Parri shall have the exclusive authority to declare a different competent court, which shall then be the competent court of the place of residence of the Client.