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GENERAL PURCHASE CONDITIONS of the RECO ENTERPRISES,
being the limited private company RECO HOLDING B.V.
and all its affiliated companies, all situated in Koudekerk aan den Rijn, the Netherlands,
registered at the Dutch Chamber of Commerce in Leiden mid-December 2010 under number 28053957
In these General Purchase Conditions (“Conditions”), the following terms have the following meanings:
Contractor: any natural or legal entity from whom we order Products and/or Services and/or with whom we are in discussion or negotiation about entering into a Contract;
Order: any instruction from us to the Contractor for delivery of Products and/or provision of Services, in whatever form;
Products: any items delivered or to be delivered to us in the execution of an Order, irrespective of whether the Order only covers delivery of those items or (also) covers the provision of Services;
Contract: Any contract formed between us and the Contractor, any amendment or addition to it, as well as all (legal) acts for the preparation and/or execution of this Contract;
Services: all work activities (in whatever form and by whatever name, for example, services, acceptance of work, supply of personnel, etcetera) the Contractor performs for us of for our benefit, whether or not in conjunction with delivery of Products.
Article 1: General/Applicability
1.1. These Conditions are part of all Contracts and apply to all (other) acts and legal acts between us and the Contractor even if the (legal) acts should not result in, or are not related to, a Contract.
1.2. We specifically reject the applicability of any General Conditions of the Contractor.
1.3. If we (partially) act as seller of goods, service provider or contractor, our general sales and delivery conditions (also) apply to all (legal) acts by us or our possible counterparties with regard to the Contract or any related negotiations. These Conditions have been deposited at the Dutch Chamber of Commerce in Leiden under number 28053957 and will be sent to the Contractor immediately, if so requested.
1.4. All our Orders are free of obligation and may be withdrawn by us without formality, even if the Order was accepted by the Contractor.
1.5. Any offers and quotations by the Contractor are set and binding and may not be amended before or after the Order, unless these relate to an (extra) discount that may (in the interim) be granted by the Contractor.
Article 2: Prices
2.1. All prices stated in the Order are fixed, and expressed in Euros and exclusive of VAT.
2.2. The prices of Products include standard packaging and delivery carriage paid and are exempt from import duties. The prices of Services always include all travel and accommodation costs, as well as any other costs. Furthermore, the prices of all Products and Services include all preparatory work and any other work necessary to comply with requirements, descriptions and specifications set by us.
2.3. Payment by us will not be due until after complete and correct execution of the Order and acceptance in accordance with the provisions in article 6. If these requirements are met, we will make a payment within 60 days after receipt of the relevant invoice.
2.4. The Contractor is not allowed to transfer any claims against us to any third parties, to pledge or otherwise encumber these and/or alienate these to third parties, unless we have given prior written permission. If RECO does not object against a referral to transfer, pledge, encumbrance or alienation in relation to invoices or other documents by the Contractor, this does not mean that they agree with the aforementioned transfer, pledge, encumbrance or alienation.
2.5. We are entitled to set off any claim the Contractor has against us against claims we may (for whatever reason) have or come to have against the Contractor (whether or not due and payable).
2.6. Without prejudice to our other rights, we are entitled to charge to the Contractor any judicial and extrajudicial costs, including legal assistance costs, we reasonably incurred or will have to incur for the collection of any due payment, or in order to obtain compliance with any obligation by the Contractor.
Article 3: Execution of the Contract
3.1. The Contractor is obliged to execute the Order himself, unless we have given explicit and written permission for tendering, subcontracting, purchasing from third parties or we have issued an explicit written instruction for this purpose.
3.2. The Contractor is fully responsible and liable for any input by third parties in the execution of the Order.
3.3. The Contractor indemnifies us against any claims from third parties involved in the execution of the Order.
3.4.1. The agreed term within which the Order must be executed is vitally important to us. The Contractor will be in default by a single instance of exceeding the times agreed with us when performances must be delivered.
3.4.2. In the event of exceeding the times agreed with us, the Contractor owes an immediately payable penalty of € 5,000.00 for each separate instance of exceeding the time limit, plus an amount of € 1,000.00 for each day the instance of exceeding the time limit continues, whereby part of a day shall count as a whole day, without prejudice to the provisions in article 8 of these conditions and without prejudice to our other rights, including our right to claim (full) compensation.
3.5. The execution period commences on the date the Contractor accepts our Order, unless parties have explicitly agreed otherwise.
3.6. If the Contractor exceeds an agreed time period, the Contractor is obliged to immediately refund to us all the payments or guarantee sums he may already have received under the relevant Contract, without the Contractor being entitled to set these amounts off against any claims against us he may be entitled to or he alleges to have against us.
Article 4: Contract variations
4.1. The Contractor is obliged to execute the Order strictly according to what has been agreed between parties and with due observance of the requirements of good workmanship.
4.2. Before or during the execution of the Order, we are entitled to make amendments to the specification of what we have agreed with the Contractor, or to demand extra delivery of Products and/or extension of Services after the execution of the Order.
4.3. As far as he is technically capable, the Contractor declares his willingness in advance to perform the amended Order and/or deliver Products and/or Services on the basis of the same conditions.
4.4. If the performance the Contractor must deliver on the basis of the amendment is demonstrably reduced, it means that there is a contract reduction which is eligible for setoff.
4.5. If the performances the Contractor must deliver on the basis of the amendments are demonstrably more complicated or increased, it means that there is a contract extra for which the Contractor will be paid. Contract extras do not include any additional work the Contractor could have and should have foreseen when he accepted the Order.
4.6. If the Contractor is of the opinion that he is entitled to payment for contract extras, he will delay the execution until he has issued a quotation to us with regard to the extent of the extra work he expects to do, and the costs involved as a result of this amendment. The Contractor will not commence the execution of any contract extras before he has received a written and explicit instruction from us.
4.7. If there are contract variations, the date of delivery of the Products or the provision of Services will be redetermined by us.
4.8. If no agreement can be reached over the price or the terms for the contract variations, it will be considered a dispute as referred to in article 11.
Pending the decision of such a dispute, the Contractor will, for the time being and if so required by us, be obliged to execute the Order according to our amended specifications.
Article 5: Guarantees
5.1. The Contractor explicitly guarantees the reliability of the Products and/or Services delivered by him. In this respect, the Contractor guarantees that the Products and/or Services are suitable for the purpose for which the Order was placed, the Products are new, of good quality and free from errors with regard to design, treatment, manufacture, construction and dimensions, as well as free from defects in the used materials and provides the safety that is expected from it, the Products are manufactured in accordance with the latest state of the art of technology, the Products as regards quantity, description, quality and performance are fully in accordance with the specifications and any samples, models and drawings, all applicable national and international regulations with regard to the Products, the packaging of it and/or the Services have been strictly observed, the Products and/or Services comply with the requirements that can be set for this in all reasonableness.
5.2. Ordered Products are, in any case, considered unreliable within the meaning of the previous paragraph, if these show defects within 5 years, unless these defects are the result of normal wear and tear or due to a considerable fault by us.
5.3. Without restricting our rights to compensation of costs, damages and interest, the aforementioned guarantee means that the defects which occur within a year after delivery must be fully remedied at no charge and immediately on our request, if necessary by means of replacement of the Products or components thereof, or by performing the relevant Services again. The remedy will always be executed on site, unless this is not possible.
5.4. After the defects are remedied, a new guarantee period as described in paragraph 2 of this article will commence and with regard to the replaced or repaired Products the Contractor will guarantee the reliability thereof as described in paragraph 1 of this article.
5.5. If it is necessary for the safety of persons and/or the progress of the work, we are entitled to carry out repairs (or have these carried out) at the expense of the Contractor.
Article 6: Delivery
6.1. Unless parties have agreed otherwise in writing, the ordered Products must be delivered by the Contractor carriage paid at the destination specified by us. The Contractor is obliged to ensure the reliability of the packaging in accordance with all applicable laws and regulations, as well as security and proper transport. The ordered Products may only be shipped in part-deliveries if this has been explicitly agreed in writing.
6.2. The supply/delivery is fully at the expense and risk of the Contractor, even if he uses our personnel to perform this supply/delivery.
6.3. We will check the ordered Products and/or Services within a reasonable time period after delivery or performance.
6.4. Acceptance of the Products and/or Services shall have no further-reaching meaning than that in our preliminary opinion the apparent conditions of the Products, or the visible performance or apparent result of the Services, is in accordance with the Order. In particular, acceptance shall not preclude any later reliance by us on non-compliance by the Contractor of his obligations.
6.5. In the event that we reject the Products and/or Services or if we later consider these not to comply with the requirements set under this Contract and Order, we may give the Contractor the opportunity, without prejudice to our other rights, to remedy and/or repair the failures immediately on our request at the expense and risk of the Contractor. Any additional costs, for example for disassembly, transport and re-assembly will be at the expense of the Contractor. After mutual consultation we will determine in what manner and within what time period the defects and failures must be remedied.
6.6. If, in our reasonable opinion, replacement or improvement of Products and/or Services as referred to in the previous paragraph of this article is not possible or the Contractor does not comply with our request within the time period set by us, the Contractor is obliged to refund to us all amounts received from us, without the Contractor being entitled to set these amounts off against any claims against us he may be entitled to or he alleges to have against us. In that case we are also entitled to take the necessary steps or have these taken and charge the associated costs to the Contractor, including any extra expenses we would reasonably have to make in order to have the Products and/or Services replaced.
Article 7: Transfer of ownership
7.1. We shall acquire ownership of Products ordered by us at the time when these are delivered to us, or at the time of any other legal delivery, whichever is the sooner. Until the moment of acceptance as referred to in article 6 the Products are at the expense and risk of the Contractor.
7.2. If parties have agreed that full or partial payment is made for Products not yet completed at an earlier time than delivery took place, it is on the basis of this advance payment, and without another act of transfer being required for this purpose, that we shall acquire ownership of all Products, materials, raw materials and semi-finished goods which are used by the Contractor for the execution of the Order or are intended for this. The Contractor is obliged to acquire the aforementioned Products, materials, raw materials, semi-finished products free from encumbrances and third-party rights and store these separately for our benefit.
7.3. The Contractor does not have any right of retention or right of suspension with regard to the ordered Products.
7.4.1. All items we make available to the Contractor with regard to the Order remain our property. The Contractor guarantees that these items will not be encumbered by any third-party rights. Furthermore, the Contractor will refrain from such acts or omissions with regard to the items that we would lose ownership, by means of specification, confusion, accession, or in whatever other manner.
7.4.2. The Contractor does not have any right of retention or right of suspension with regard to these items.
7.4.3. The Contractor is responsible for insuring the items referred to in article 7.4.1. against any damages that may result from complete or partial loss or damage. The Contractor will provide us with the relevant policies immediately on our request.
7.4.4. With the exception of intent or gross negligence, we are not liable for any adverse consequences of the use of the items referred to in article 7.4.1. by the Contractor or by any third parties. The Contractor will return these items to us in good condition and will not use these items for any other purpose than the proper execution of the Order.
Article 8: Liability
8.1. The Contractor will execute the Order fully at his own risk. Any damages, both direct and indirect and including any damages due to loss of profits, that are sustained by us or any third parties as a result of or in connection with the execution of the Order, will be compensated by the Contractor, irrespective of whether these damages were caused by the Contractor himself, his personnel, or other persons the Contractor involved in the execution of the Order.
8.2. Except in the event of a non-attributable failure as referred to in article 6:75 (“force majeure”), the Contractor is fully liable for any loss which may be sustained by us or any third party as a result of any defects in the delivered Products and/or performed services.
8.3. Force Majeure is in any case not understood to mean: strikes, staff illness and/or shortage of staff, late delivery by suppliers and/or unsuitability of materials, raw materials or semi-finished goods or Services, other attributable failures or wrongful acts of suppliers or third parties engaged by the Contractor and/or, liquidity or solvency problems on the part of the Contractor etc.
8.4. The Contractor shall indemnify us against any claims third parties may make against us as a result of failures by the Contractor.
8.5. The Contractor is obliged to take out and maintain adequate insurance for statutory and professional liability. Immediately after we hold the Contractor liable, the Contractor is obliged to assign all claims with regard to payment of insurance money to us, if requested to do so.
8.6. Without prejudice to our other rights, and without any further default notice being required and without any judicial intervention, we are entitled to fully or partially terminate the Contract by a single notification to the Contractor, if the Contractor does not execute the Order properly or exceeds a time period during the execution of the Contract or if it can reasonable be assumed that the Contractor will not be able to execute the Order properly and on time.
8.7. In the event of a (provisional) suspension of payment, bankruptcy, cessation or liquidation of the Contractor’s business, all Contracts with the Contractor will be terminated by operation of law, unless we state, within a reasonable term after the relevant fact became known to us, that we want to fully or partially maintain the Contracts. Furthermore, without any default notice being required, we are entitled to suspend all obligations in relation to the Contractor that may arise from the Contracts or on any other basis.
8.8. If an event occurs as referred to in paragraph 1 of this article, all our claims on the Contractor and the claims referred to on the basis of the relevant Contracts are immediately due and payable in full. In this respect, on the basis of termination or resolutory conditions becoming effective, we are entitled to reclaim from the Contractor all payments made by us as having been unduly paid. In so far as return of delivered goods is possible, we have the right to choose whether to retain the completed work against payment on the basis of the value of the completed work to us, which is to be reasonably determined, or return it to the Contractor at his expense and risk, without prejudice to our rights of setoff.
8.9. A termination as referred to in the previous paragraphs will not result in termination of our rights as laid down in this Contract.
Article 9: Intellectual property
9.1. The Contractor shall grant us a non-exclusive licence on any intellectual property rights on the Products and/or Services, including but not limited to, rights in relation to patents, (utility) models, brands, and know-how. The fee for this licence is included in the price.
9.2. The intellectual property rights with regard to the results of Services are held by us. If any legal system requires that a further (legal) act is necessary for the establishment and/or transfer of these rights, the Contractor will inform us accordingly and provide all necessary assistance to us in this matter.
9.3. The Contractor guarantees that the Products and/or Services do not infringe any of our or third-party intellectual property rights. The Contractor indemnifies us and our customers against any infringement in this matter.
Article 10: Acceptance of work
10.1. This article includes explicit stipulations for the acceptance of work by the Contractor. If any stipulations of this article conflict with these Conditions, the provisions in this article shall prevail over the other stipulations in these Conditions.
10.2. If the Contractor commences work without having received a written instruction from us, this will be at the expense and risk of the Contractor. We shall not be obliged to make a payment in this respect and, moreover, we shall be entitled to demand that the Contractor restores everything properly in its original state.
If the Contractor identifies any errors or inconsistencies in parts of the Contract, the Contractor must consult with us before commencing execution of the Contract.
10.3. If an award procedure is in place, and the relevant work is not awarded to the Contractor, immediately after receipt of the notification that the work has not been awarded, the Contractor must return to us any drawings and other documents provided by us or on our behalf.
10.4. If required by us, the Contractor will provide us with a schedule of operations that includes the times of commencement and completion (milestones) of (parts of) the work and the staffing levels.
Periodically and in accordance with our wishes, the Contractor is obliged to report on the state and progress of the work and all aspects related to this.
10.5. The Contractor is responsible for the day-to-day management and supervision. We are entitled to carry out checks on compliance of this Contract. These checks shall never relieve the Contractor of any responsibility and/or liability.
10.6. Completion is considered to have taken place if we have expressed our approval of the completed work. This can only be evidenced by means of written proof of completion.
Until the time of completion, the work remains at the risk of the Contractor.
We are, at all times, entitled to use or have a third party use the work, whether or not this has been completed. This use does not mean that the work, or a part of the work, that is used, is regarded as completed.
10.7. During a term of one year from the date of completion of the work, the Contractor is obliged, at his own expense and risk, to remedy or carry out any imperfections, improvements, renewals and/or repairs or carry out additional work with additional supply of materials, if the Contractor has been made aware of these.
This maintenance obligation also applies to those imperfections which could not have been detected during the term of one year after the date of completion.
10.8. All necessary materials will be purchased by the Contractor, at his expense. By delivering materials to our site or the site where the work under our instruction must be carried out, the Contractor transfers ownership of these items to us.
If it has been decided that materials are purchased by us instead of the Contractor, the Contractor is entitled to having such quantities made available as are reasonably necessary for the execution of the work.
The materials to be provided by the Contractor, must comply with the requirements reasonably set by us and must be in accordance with the required specifications.
Without prejudice to the provisions in the other paragraphs of this article, the materials delivered by the Contractor, as well as those made available by us, are at the risk of the Contractor. If any materials are lost or damaged, by whatever cause, the Contractor is obliged to pay the costs for replacement or repair.
10.9. The Contractor is responsible for all tools and equipment necessary for the work. All the Contractor’s tools and equipment may only be used in accordance with current legal provisions, as well as in accordance with any additional requirements reasonably set by us.
10.10. The responsibility for the working conditions and safety at work lies exclusively with the Contractor. In this respect, the Contractor must observe all applicable legal regulations, labour inspectorate regulations, safety regulations on site, as well as any guidelines and instructions issued by us.
The Contractor is obliged to carry out regular safety inspections at work. The results of these inspections must be reported to us.
10.11. The Contractor is deemed to be aware of all legal and other requirements, conditions and stipulations. The Contractor and any third parties engaged by him, including his personnel, are obliged to comply with and observe all regulations, conditions and stipulations.
The Contractor shall give us his guarantee that he will strictly comply with all his legal obligations in respect of payment of income tax and national insurance contributions due that are related to the work assigned to him, and, furthermore, strictly adhere to the applicable collective agreement provisions.
10.12. Records kept by the Contractor must be such that the actual wage costs per project can be established. We are, at all times, entitled to check these records.
In respect of the Dutch Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act, the Contractor will provide us with all the relevant documents, including payment history statement, social security administration agency statement, (both statements no older than three months), a copy of a G-account agreement, a certified true copy of the Chamber of Commerce extract (no older than one month), the man-day statement specified per person, as well as any other data we require from the Contractor.
The Contractor must state the actual wage costs on the relevant invoice, and 40% of these actual wage costs will be transferred by us to the Contractor’s G-account. This amount is for tax and national insurance contributions.
At any given time, the Contractor must provide us with the original of a recent payment history statement from the Dutch Employee Insurance Agency and the Dutch tax authorities, stating that with regard to the Contractor’s personnel, as well as any third parties engaged by the Contractor tax and national insurance contributions have been paid.
Article 11: Disputes
Any disputes between us and the Contractor, which may arise from the Contract concluded between us and the Contractor, will be settled by a court that is competent on the basis of statutory rules of jurisdiction, or by the competent court in the district where we have our actual office, at our discretion.
Article 12: Governed by Dutch law.
All acts carried out by us, including the Contract concluded by us, are governed by Dutch law.
The applicability of the Vienna Sales Convention is explicitly excluded.