Article 1. APPLICABILITY.
1.1. The provisions in these conditions apply to any use of the website www.bluemcare.com and to all offers of, agreements with, deliveries from and activities by 5 Pillar Research B.V., hereinafter named: the supplier, unless explicitly agreed otherwise in writing.
1.2. The client, with which a contracted is concluded once under the present conditions, declares to agree that these conditions shall also apply to subsequent orders, additional work assignments and/or new agreements to be concluded with the supplier.
Article 2. ESTABLISHMENT OF THE AGREEMENT.
2.1. All of the supplier’s offers are entirely free of obligation. Previous offers are deemed to have been revoked once a new offer has been issued.
2.2. Assignments, alterations, supplementations and/or extension of an agreement are only binding for the supplier if and insofar as they have been confirmed by the supplier to the client in writing. The supplier is entitled to make its obligation to an agreement dependent on receiving a copy of the offer and/or order confirmation signed by the client.
2.3. For deliveries, activities and/or additional work assignments for which, given their nature and limited scope, no quotation or order confirmation is sent, the invoice is also deemed as order confirmation. In that case, the invoice is deemed to represent the agreement in full and accurately.
2.4. Samples, descriptions, images and publications are deemed to state the qualities of the goods to be delivered by way of indication. However, the goods to be delivered may differ from the samples intended above. Potential deviations do not entitled the client to refuse to receive or to pay for the goods unless the deviation is too great that the client could not be reasonably expected to accept them.
2.5. If an agreement has been established between one supplier and two or more clients, these clients are each severally liable for observing the obligations resulting from the agreement.
Article 3. ESTABLISHMENT OF THE AGREEMENT ELECTRONICALLY.
3.1. The provisions stated in this article specifically apply if the client establishes an agreement electronically. The other terms and conditions remain in force unchanged.
3.2 Prior to concluding an agreement electronically, the supplier is not obliged to provide information concerning: – the manner in which the agreement is to be established and in particular what actions are required for this: – whether or not the agreement is filed and how a potential file; – the manner in which the client is able to detect and trace input errors; – the languages in which the agreement can be concluded; – the codes of conduct the supplier must abide by and the way in the client is able to consult these codes of conduct.
3.3. The supplier is not obliged to send receipt or order confirmation to the client.
3.4. Paragraph 2 of this article does not apply to agreements with a natural person not acting in the performance of a profession or business.
Article 4. DELIVERY.
4.1. All delivery periods cited by the supplier shall be observed as far as possible, yet these periods are not deadlines. The supplier is in any event not bound by delivery periods that can no longer be achieved due to non-attributable failures such as those intended in article 11 of these conditions.
4.2. The supplier is entitled to deliver in batches. The deliveries may be invoiced by the supplier separately. Once goods have been delivered, even if these have not yet been assembled and/or invoiced, from the moment of delivery these are fully at the client’s risk, including the risk of damage, loss or deteriorations due to, for instance, fire, water damage, theft or destruction.
4.3. Shipment and transportation from the supplier to the client occurs at the supplier’s risk.
Article 5. PRICES.
5.1. Unless stated otherwise, all prices are expressed in euros, including turnover tax (VAT).
5.2. All prices stated by the supplier are invoiced based on the prices applicable at the time of the offer.
5.3. Should price increases arise, involving for instance raw materials, exchange rates, equipment, wages and/or government charges, the supplier is entitled to charge these price increases on to the client, provided that the client is authorised to cancel the agreement, if such changes jointly amount to more than 10% of the original order amount. If the client uses this option, art. 12 paragraph 1 of these conditions remains non-applicable.
5.4. With prejudice to the provisions in article 5.4, for agreements with an invoice value below €500.00 excluding VAT, the supplier is entitled to charge the client for handling, administration and/or postage costs. In the case of returns, these contributions are not refunded.
5.5. If the items are delivered and/or assembled and/or installed, the supplier is entitled to charge delivery and/or assembly and/or installation costs for this. These costs shall in that case be specified separately on the invoice.
Article 6. PAYMENT.
6.1. You determine the way in which payment is to be made when the agreement is established.
6.2. The supplier only proceeds to delivering the product once it has received the payment for this.
6.3. If it has been agreed to pay within eight days following the invoice date, the payments must therefore occur within eight calendar days following the invoice date, without any discount or deduction for any reason whatsoever (including deduction with third-party invoices – for repairs or otherwise). The supplier retains the right to deliver on cash payment, or to demand whole or partial payment for partial delivery, assembly or full delivery.
6.4. All payments made by the client primarily serve for paying any interest and costs owed, and subsequently for paying invoices owed, starting with the oldest invoice, even if the client states that the payment relates to other invoices still outstanding.
6.5. In the event of late payment the client is legally in default, and it owes the supplier interest compensation at 1% per month, or a portion of this, calculated from the day on which the invoice should have been paid. If the statutory interest rate ex art. 6:119a of the Civil Code is higher, the client owes this higher interest rate.
6.6. From the date the client is in default, the supplier is entitled to outsource the claim(s) to be collected. The client is in that case obliged to pay extra-judicial collection costs at 15% of the total amount owed, with a minimum of €250.00 per collection file, as well as to pay all legal costs.
Article 7. SUSPENSION/DISSOLUTION.
7.1. The supplier is entitled to ask the client to provide a sufficient securities for observing its payment obligations, and to suspend executing the agreement or parts of this until the requested securities have been provided.
7.2. The supplier is entitled to suspend further execution of the agreement if the client fails to observe the payment conditions, or otherwise does not comply with its obligations.
7.3. The supplier is entitled to declare the existing agreements between it and the client, even insofar as these have not yet been executed, without legal intervention, if the client fails to observe its obligations promptly or properly, as well as in the case of bankruptcy or suspension of payment, suspension of operation or liquidation of its company/practice.
7.4. The consequences of suspension and/or dissolution, including the damage resulting from this, are on account of and at the risk of the client.
7.5. Suspension and/or dissolution do not affect the client’s payment obligations for goods already delivered or activities already performed. In such a situation, the supplier’s claim relating what has already been delivered or already performed is payable immediately.
Article 8. RETENTION OF TITLE.
8.1. All goods delivered to the client, and no paid for, remain the supplier’s property until everything the supplier claims from the client has been paid.
8.2. In the event the client fails to meet its payments obligations or does not do so in full, its grants the supplier irrevocable authorisation to take back the goods delivered by it and unpaid for, at the client’s expense, or to have this taken back, from where these are located.
8.3. The client is obliged to inform the supplier by registered letter if third parties might wish to seize goods delivered by the supplier and not yet paid for, or have already seized these.
Article 9. COMPLAINTS AND WARRANTY.
9.1. The client is obliged to examine the goods delivered immediately following receipt for any visible faults and/or defects. The client must report faults and/or damage – or have this reported – on the delivery note and/or shipping documents, etc., or make this known to the supplier immediately in writing within 72 hours following receipt of the goods delivered, in the absence of which the client is deemed to have receive everything delivered in a good condition.
9.2. Non-visible faults or defects must be make known to the supplier in writing within eight days after the client has discovered these or ought to have discovered these, under pain of any liability in this regard expiring, unless given the nature of the complaint that term reasonably requires extension.
9.3. The right to warranty/complaint expires if the instructions provided are not followed or not followed properly, the goods delivered are handled injudiciously, or the goods delivered have not been used in accordance with regulations, legal or otherwise. Moreover, no right arises if the faults are the result of normal wear and tear or if alterations have been introduced by third parties.
9.4. The goods delivered by the supplier are in no instance subject to any deeper warranty the supplier has itself obtained from those from whom it acquired the goods concerned.
9.5. Pursuant to article 7.2 of these conditions, the supplier is entitled to suspend observance of its warranty obligation until the client has observed the payment conditions or its obligations otherwise.
Article 10. ATTRIBUTABLE FAILURE or LIABILITY.
10.1. In the event of attributable failure on the part of the supplier in observing the agreement, the client shall give the supplier the opportunity to perform the agreed service within a reasonable period. In that case, the supplier is therefore in no instance obliged to further compensation of any nature.
10.2. If the event the client can no longer be reasonably expected to provide the supplier further opportunity or the supplier is definitively in default, the supplier’s liability for damages demonstrably suffered by the client is limited to the amount potentially paid out by the supplier’s liability insurance. In the event the insurer should not proceed to pay out, the damage is not covered by the insurance or the supplier is not insured, liability is limited to a maximum of 50% of the amounts invoiced or to be invoiced by the supplier to the client based on the agreement concerned, excluding turnover tax.
10.3. The supplier’s liability for indirect or consequential damage, loss of business or damage due to loss of turnover, lost profit, loss due to delays and suchlike, is excluded. The liability arising due to data stored digitally being lost is likewise excluded.
10.4. A condition for any right by virtue of the provisions in this article arising is that the client has reported what it believes to be a failure attributable to the supplier as soon as reasonably possible, in writing to the supplier.
10.5. The supplier is unable to invoke the liability limitations in this article is there is any case of intent or wilful recklessness on the part of the supplier.
Article 11. NON-ATTRIBUTABLE FAILURES or FORCE MAJEURE.
11.1. All outside causes over which the supplier is unable to exercise any influence, foreseen or unforeseen, meaning the supplier is unable to execute the agreement on time or not without excessively onerous effort and/or costs for the supplier, are deemed as a non-attributable failure. This is understood to include strikes, illness and/or accidents of its staff, insofar as this concerns specialised employees, whom cannot reasonably be substituted within a short period.
11.2. If a non-attributable failure is impending or has already occurred, the supplier is obliged to enter into consultation with the client as soon as reasonably possible. The client shall in that case give the supplier the opportunity to perform the agreed service within a reasonable period.
11.3. In the event of a non-attributable failure, the supplier is not obliged to any compensation of any nature whatsoever.
11.4. In the event of a non-attributable failure, the parties shall only be able to use the right to dissolve the agreement after the ends of a period of one month after the failure has arisen.
Article 12. CANCELLATION OR POSTPONEMENT OF THE DELIVERY.
12.1. If an agreement is cancelled by the client or is dissolved due to a cause attributable to the client, the supplier is entitled to claim compensation from the client, amounting to a minimum of 25% of the order value of the delivery in question, excluding VAT.
12.2. If a delivery is postponed at the client’s request or due to a cause attributable to the client, the supplier is entitled to claim an advance payment from the client of 50% of the order value of the delivery concerned, and an interest payment of the remaining amount, from the date on which the delivery should have occurred according to the agreement.
Article 13. REFERENCES.
The website may contain references to other third-party websites, for instance through a hyperlink, banner or button. The supplier has no control over these websites and is not responsible for their content.
Article 14. DISPUTES.
14.1. All disputes are exclusively subject to Dutch law.
14.2. By way of derogation to the legal rules for the competence of the civil judge, the court of Arnhem is competent to hear all disputes resulting from the supplier’s offers and agreements between the supplier and a client, however these are named, in the broadest sense.
14.3. The parties are at all times entitled to ask the judge in preliminary relief proceedings for an interim provision to issue a garnishee order, and to ask the civil judge to rule on proceedings resulting from this order.
14.4. These Terms and Conditions may be adjusted by the supplier at any time.