General Terms and Conditions ErgoXS B.V.
Version 18 February 2022
Article 1: Definitions
1.1 General Terms and Conditions: these general terms and conditions.
1.2 ErgoXS: the private company with limited liability ErgoXS B.V., established in Tolbert, Chamber of Commerce number: 01112036.
1.3 Services: all services provided by ErgoXS, however named.
1.4 Product: product(s) of ErgoXS.
1.5 Agreement: any agreement concluded with ErgoXS relating to the sale and/or provision of Products and/or the provision of Services.
1.6 Counterparty: any natural person, legal entity or entity with whom ErgoXS enters into an Agreement or to whom ErgoXS makes an offer, quotation, price list, quotation or other statement regarding an Agreement to be concluded.
Article 2: General Terms and Conditions
2.1. The General Terms and Conditions apply to all Agreements and to all offers, quotations, quotations and other expressions concerning an Agreement to be concluded, from ErgoXS.
2.2. Adjustment and/or addition of the General Terms and Conditions can only be agreed in writing between ErgoXS and the Other Party, signed by ErgoXS and the Other Party.
2.3. If it appears that certain provisions in these General Terms and Conditions are not legally valid , the General Terms and Conditions will otherwise remain in force. The non-applicable provisions will be replaced by provisions that are as close as possible to the provisions to be replaced.
2.4. The Other Party with whom an Agreement has once been concluded under the applicability of the General Terms and Conditions, agrees with the applicability of the General Terms and Conditions to future and/or follow-up agreements.
2.5. ErgoXS expressly rejects the applicability of any general terms and conditions of the Other Party.
Article 3: Conclusion of the Agreement
3.1. An offer, quotation or quotation from ErgoXS is without obligation and only counts as an invitation to place an order.
3.2. An Agreement between ErgoXS and the Other Party is concluded at the moment that the acceptance of the offer has reached ErgoXS and ErgoXS accepts it in writing or electronically.
3.3. If the acceptance is accompanied by reservations or changes with regard to the offer, the Agreement will only be concluded if ErgoXS has informed the Other Party that it agrees with the deviations.
3.4. All Agreements with ErgoXS regarding the sale and/or provision of Products are concluded under the resolutive conditions: “While stocks last, at ErgoXS itself or a supplier”.
3.5. Obvious (writing) errors and/or mistakes in an offer do not bind ErgoXS.
Article 4: Price
4.1. The prices of ErgoXS are, unless explicitly stated otherwise, expressed in Euro and exclusive of taxes, VAT and other levies.
4.2. The costs for transport, packaging, (external) storage and shipping are for the account of the Other Party, unless expressly agreed otherwise.
4.3 ErgoXS has the right to increase the price in the event of an increase in cost-determining elements after the offer, quotation or quotation and/or between the time of the conclusion of the Agreement and the full fulfilment thereof, and regardless of its foreseeability. Such a price increase does not entitle the Other Party to dissolve the Agreement.
Article 5: Payment
5.1. The price must be paid on time, at the latest within 30 days after the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
5.2. If payment is not made on time, the Other Party will be in default, without a notice of default being required.
5.3. If the Other Party is in default with the payment of what it owes to ErgoXS, it will owe interest of 1.5% per month per date of default.
5.4. In addition, the Other Party will owe 15% of the principal sum due to extrajudicial collection costs per date of default, with a minimum of EUR 250 excluding VAT. Insofar as ErgoXS has to incur judicial and execution costs, the Other Party is obliged to fully reimburse ErgoXS for these costs.
5.5. If the Other Party is in default with the payment of the price, ErgoXS is entitled to suspend all its obligations until the Other Party has fulfilled its payment obligations.
5.6. Any amount that ErgoXS receives from the Other Party will first of all serve to settle those claims for which ErgoXS has not stipulated retention of title as referred to in Article 7 of the General Terms and Conditions. Subsequently, any amount that ErgoXS receives from the Other Party will serve to pay any interest and costs owed and then to pay the oldest outstanding invoices.
5.7. The Other Party is not authorized to set off the amounts owed to ErgoXS or to suspend payment of amounts due. Payment can only be made in a liberating manner to the bank account number designated by ErgoXS.
Article 6: Delivery
6.1 Unless otherwise agreed in writing, ErgoXS dap (Delivery at place) delivers according to the Incoterms® 2020 DAP.
6.1. ErgoXS takes care of the transport of the Product, the costs of the transport are borne by the Other Party. ErgoXS will ensure that the Product is delivered at the agreed time. However, this period is not a deadline. If no time has been agreed between ErgoXS and the Other Party, the Product will be delivered by ErgoXS within a reasonable period of time.
6.2. The delivery period referred to in the previous paragraph is extended by the period during which ErgoXS cannot meet its obligations due to force majeure. The place of delivery is the address of the Other Party that has been made known to ErgoXS when placing an order.
6.3. ErgoXS is only in default if the delivery period is exceeded, after ErgoXS has been given notice of default by the Other Party, whereby it has been granted a reasonable period for compliance of at least 30 days.
6.4. The Product is at the risk of the Other Party from the moment of delivery, even if ownership has not yet passed to the Other Party at that time.
6.5. If the Other Party does not purchase the Products or does not take them on time, the Other Party is in default without a notice of default being required. ErgoXS is then entitled to suspend its obligations towards the Other Party or to dissolve the Agreement and / or to claim (additional) compensation.
6.6. Costs of and damage as a result of delay or delay shall be borne by the Other Party.
6.7. ErgoXS will perform the Services to be performed by ErgoXS carefully and in accordance with the requirements of good workmanship. This obligation has the character of a ‘best efforts obligation’, because the achievement of the intended result can explicitly not be guaranteed by ErgoXS. The Other Party is not entitled to have the Services (also) provided by a third party without consultation with or permission from ErgoXS.
6.8. The Other Party is not permitted to remove and/or change any brand, license plate, letter, number or other indication that ErgoXS has affixed to its Products.
6.9. ErgoXS reserves the right to consider each (part of the) delivery as a separate transaction and to charge the associated costs.
Article 7: Retention of title
7.1. ErgoXS reserves, in accordance with Article 3:92 paragraph 1 of the Dutch Civil Code, ownership of the Products sold to the Other Party until the Other Party has paid all claims under all Agreements concluded with ErgoXS. This also includes claims for payment of interest and costs as a result of a shortcoming attributable to the Other Party in the performance of the Agreement.
7.2. The Other Party is not authorized to dispose of all or part of the Products subject to retention of title, other than in the context of its normal business operations, to rent them out to third parties, to give them use, pledge or otherwise encumber them for the benefit of third parties. If the Other Party violates this provision, the price due is immediately due and payable and ErgoXS is entitled to collect the Product.
7.3. In the event of attachment, suspension of payment or bankruptcy, the Other Party is obliged to immediately point out to third parties the Products that are still the property of ErgoXS as a result of the retention of title. The Other Party will also inform ErgoXS immediately if such a situation occurs.
7.4. The Other Party is also obliged to insure the Products against fire, explosion, water damage and theft for the duration of the retention of title, and to make the insurance policies available for inspection to ErgoXS on first request.
Article 8: Complaints
8.1. The Other Party is obliged to inspect and inspect the Product delivered by ErgoXS and/or the Service provided by ErgoXS without delay. To this end, the Other Party must check whether the quality of the Product/Service corresponds to what ErgoXS and the Other Party have agreed.
8.2. The Other Party must communicate any complaint with regard to visible defects to ErgoXS within 5 days at the latest. If ErgoXS does not receive such a anotification from the Other Party within 5 days, the Product is deemed to have been approved by the Other Party.
8.3. The Other Party must communicate any complaint with regard to invisible defects, at the latest within 5 days after discovery, but in any case within 2 months after receipt to ErgoXS. If ErgoXS does not receive a notification from the Other Party within this period that it is complaining about the Products, the Products will be deemed to have been approved by the Other Party.
8.4. If the Other Party makes use of its right to complain, it is not entitled to suspend or set off its payment obligations.
Article 9: Liability
9.1. The Other Party is in any case, but not exclusively, liable for damage to the Product, if the Product is still the property of ErgoXS, and the damage is the result of:
- failure by the Other Party to take care of the necessary maintenance or replacement of parts in a timely manner; and/or
- making changes to the Product by the Other Party (or having them made) without written permission from ErgoXS; and/or
- improper use of the Product (this is in any case the case if the Product is used in violation of the supplied actions or instructions; and/or
- if the Product is used in a way that does not correspond to its intended purpose).
9.2. ErgoXS is not liable for damage caused to the Other Party by the Product, if this damage is the result of:
- failure by the Other Party to take care of the necessary maintenance or replacement of parts in a timely manner; and/or
- making changes to the Product by the Other Party (or having them made) without written permission from ErgoXS; and/or
- improper use of the Product (this is in any case the case if the Product is used in violation of the supplied actions or instructions; and/or
- if the Product is used in a way that does not correspond to its intended purpose).
9.3. The liability of ErgoXS for damage is limited to the amount for which in the relevant case the applicable insurance, if it has been taken out, provides cover, plus any deductible. However, ErgoXS is under no circumstances obliged to compensate damage for an amount that is greater than the compensation to be received by ErgoXS during the term of the Agreement for the relevant Product or Service.
9.4. ErgoXS is not liable for any consequential damage, in any form whatsoever. Consequential damages include in any case lost profits, missed savings, pain money and damage due to business stagnation.
9.5. The Other Party indemnifies ErgoXS and will at all times hold ErgoXS harmless against claims that third parties and/or working persons at the Other Party on ErgoXS may have arising from or in connection with the execution of the Agreement by ErgoXS and/or the ownership, possession, use or exploitation of the Product, unless there is intent or gross negligence or gross negligence on the part of ErgoXS.
9.6. ErgoXS is not liable for damage to the Other Party that is the result of the acts and /or omissions of auxiliary persons engaged by ErgoXS in the performance of obligations resting on ErgoXS towards the Other Party, unless there is intent or gross negligence on the part of auxiliary persons who are charged by ErgoXS in its company with the management of the execution of the relevant obligations.
Article 10: Guarantees
- 1. If ErgoXS grants warranty(s) for material and/or manufacturing defects, a successful appeal to those warranty(s) only implies that ErgoXS will, at its discretion, repair the Products in question, replace the defective part(s) or replace the entire Product against return of the Delivered Product, or (partly) refund the price paid by the Other Party against the return of the delivered Product. The costs for returning and collecting the Product and all associated costs will be borne by the Other Party (Carry-in guarantee).
10.2. With regard to materials, goods and/or products purchased by ErgoXS from third parties, ErgoXS is only bound by any agreed guarantee if and insofar as it has in turn obtained a guarantee(s) from the relevant third parties in this respect.
10.3. The Invoice serves as a guarantee certificate. ErgoXS is only bound by any agreed guarantee on presentation of the original invoice by the Other Party.
10.4. ErgoXS is only bound by any agreed warranty if the Reciprocating Company contacts ErgoXS in time for an RMA number. Returns to ErgoXS without an RMA number will not be accepted.
10.5. If the defect in question has arisen as a result of improper or improper use of the Product or when, without written permission from ErgoXS, the Other Party or third parties have made changes or attempted to make changes to the Product or have used the Product for purposes for which it is not intended, the Other Party cannot invoke any guarantee (s) provided.
10.6. The Other Party cannot derive any other rights from the possible guarantee(s) of ErgoXS, other than as stated in paragraphs 1 and 2 of this article, in particular not the right to any compensation for damage arising from the use of Products.
10.7. If research costs are incurred for finding out a defect in the Product or part of the part of the Product excluded from the warranty, these research costs will always be borne by the Other Party. ErgoXS strives to report the research costs in advance. Failure to make this notification does not release the Other Party from the obligation to pay the research costs.
10.8. If costs are associated with the repair of a defect for the Other Party, the Other Party can receive the relevant Product back against payment of the research costs. If the Other Party has not paid the research costs within six months after the appeal to the guarantee, the ownership of the Product will lapse to ErgoXS.
10.9. If the Other Party does not, not properly or not timely comply with any obligation arising for it from the Agreement concluded with ErgoXS or from a related Agreement, any (claim) right of the Other Party to be able to invoke the agreed guarantee (s) will lapse.
Article 11: Termination
11.1. An Agreement can be dissolved unilaterally by ErgoXS immediately, and without a notice of default being required, in whole or in part, without ErgoXS being obliged to pay compensation for damage, in the following cases:
- if the Other Party is declared bankrupt, if the Other Party applies for suspension of payment, if attachment is made under the Other Party, if the Other Party applies for debt rescheduling or if the Other Party (as a legal entity) is taken over or dissolved;
- if the Other Party fails to comply with its contractual obligations within fourteen days despite summons;
- if ErgoXS has good reason to fear that the Other Party will fail to comply with its obligations under the Agreement.
11.2. If application of the provisions of the previous paragraph is carried out by ErgoXS, all claims that ErgoXS has on the Other Party are immediately due and payable.
Article 12: Personal data and privacy
12.1. In the context of the execution of the Agreement, ErgoXS will process personal data relating to the Other Party, but only insofar as those personal data are necessary for the execution of the Agreement. The personal data will only be processed if this is necessary for the purposes of the processing. These purposes are described in the privacy statement of ErgoXS. The personal data will only be processed in a lawful, proper and transparent manner. In this context, ErgoXS is responsible for an adequate security of the personal data of the Other Party. In order to prevent the personal data relating to the Other Party from being lost or falling into the hands of third parties, ErgoXS implements appropriate technical and organizational measures. If a breach of the security of the personal data occurs and this breach entails a high risk for the rights and freedoms of natural persons, ErgoXS will immediately inform the Other Party of the breach.
12.2. The Other Party is responsible for providing only those personal data to ErgoXS , in respect of which ErgoXS is entitled to process them.
12.3. The Other Party indemnifies ErgoXS against any claim by its employees or another third party against ErgoXS that relates to a violation of what is stipulated in this article.
Article 13: Intellectual property rights
13.1. All (information contained in) offers, quotations, designs, moulds, models, tools, images, calculations, software, drawings, Products, Services, etc. and the related rights of industrial and intellectual property or equivalent rights are and remain the property of ErgoXS, even if costs have been charged to the Other Party for the manufacture thereof. The Other Party will not infringe these rights in any way, and will in no way enable third parties to do so.
13.2. ErgoXS does not guarantee in any way that the Product delivered to the Other Party does not infringe any written or unwritten intellectual and / or industrial property right of third parties.
Article 14: Transfer
14.1. ErgoXS is permitted to transfer its rights and/or obligations under Agreements with the Other Party to third parties. In that case, ErgoXS is not obliged to pay any compensation in this respect.
14.2. Except with the prior written consent of ErgoXS, the Other Party is not entitled to transfer its rights and/or obligations under the Agreement to third parties.
Article 15: Applicable law and competent court
15.1. The Agreement and all offers, quotations, quotations and other expressions concerning an Agreement to be concluded are exclusively governed by Dutch law. Applicability of the Vienna Sales Convention is excluded.
15.2. Any dispute between ErgoXS and the other party is exclusively competent to take cognizance of the Dutch court in the district in which ErgoXS is established, unless mandatory rules of competence preclude that choice.
15.3 This document has been translated from Dutch language to the best of our abilities. In the unlikely event of inconsistency between languages, the Dutch version will prevail.