To Build - Terms and conditions

Terms and conditions To Build B.V.

The general terms and conditions of to Build B.V. apply to all quotations from to Build B.V., as well as to all agreements that to Build B.V. concludes with a client. In these general terms and conditions, the private limited liability company to Build B.V. will hereinafter be referred to as "contractor". The natural person or legal entity with whom the contractor concludes or has concluded an agreement, or to whom a quotation is or will be made by or on behalf of the contractor, is hereinafter further referred to as "client". Terms to the contrary only form part of the agreement concluded between the parties or their legal relationship if and insofar as both parties have expressly agreed so in writing. The client's acceptance and retention of a quotation and/or order confirmation/agreement counts as consent to its application. The (possible) non-applicability of (part of) a provision contained in these general terms and conditions does not affect the applicability of the remaining provisions.

Article 1: QUOTATION

The quotation is issued in writing, except in urgent circumstances.
The written quotation may state, among other things:

the location of the work;
a description of the work;
according to which drawings, technical descriptions, designs and calculations the work will be carried out;
the start date of the work;
the period within which the work will be delivered;
the price of the work described in the quotation. All (stated) prices and (hourly) rates are exclusive of turnover tax (VAT), unless expressly stated otherwise;
whether payment of the contract sum will take place in instalments;
whether a risk scheme will apply to the work, and if so, which one;
whether provisional sums have been taken into account, and if so, which ones;
whether quantities will be adjustable, and if so, which ones;
the applicability of these general terms and conditions to the quotation and to the (construction) agreement arising from it.

The period within which the work will be delivered is determined either by naming a specific day or by naming a number of workable working days. If the period within which the work will be delivered is determined by a specific day, then this day is never to be regarded as a strict deadline (see art. 7 para. 1 below).
The quotation is dated and is valid for thirty days from that day.
The quotation is accompanied by:

a copy of these general terms and conditions;
a copy of the risk scheme declared applicable in the quotation.

Drawings, technical descriptions, designs and calculations made by the contractor or on his instructions remain the property of the contractor. They may not be handed over or shown to third parties with the aim of obtaining a comparable quotation. Nor may they be copied or otherwise reproduced. If no order is placed, these documents must be returned to him carriage-paid within 14 days of a request to that effect made by the contractor.
If the quotation is not accepted, the contractor is entitled to charge the costs involved in producing the quotation to the party at whose request he issued the quotation.

Article 2: RISK SCHEME

The contractor is at all times entitled to pass on price increases, among other things due to increases in wages and (purchase) prices, i.e. to charge these to the client, regardless of whether these increases were foreseen/unforeseen and regardless of whether they fall within or outside a normally acceptable contractor's risk.

Article 3: OBLIGATIONS OF THE CLIENT

The client ensures that the contractor can have timely access to:

the data and approvals required for setting up the work (such as permits, exemptions and decisions), if necessary in consultation with the contractor;
the building, the site or the water in or on which the work must be carried out;
sufficient opportunity for the supply, storage and/or removal of building materials and resources;
connection options for electrical machines, lighting, heating, gas, compressed air and water.

The necessary electricity, gas and water are at the client's expense.
The client must ensure that work and/or deliveries to be carried out by others, which are not part of the contractor's work, are performed in such a way and in such good time that the execution of the work does not suffer any delay as a result.

Article 4: LIABILITY OF THE CLIENT

The client bears responsibility for the structures and working methods prescribed by or on his behalf, including the influence exerted on these by the existing building and/or the soil conditions, as well as for the orders and instructions given by or on his behalf.
If building materials or resources that the client has made available, or that he has prescribed, should have defects, the client is liable for the damage caused thereby.
The consequences of compliance with statutory regulations or government decisions that come into force after the day of the quotation are at the client's expense, unless it must reasonably be assumed that the contractor could already have foreseen those consequences on the day of the quotation.
The client is liable for damage to the work as a result of work carried out, or deliveries and services performed, by him or by third parties on his instructions.
If, after the conclusion of the agreement, it appears that the building site is contaminated or that the building materials coming from the work are contaminated, the client is liable for the resulting consequences.

Article 5: OBLIGATIONS OF THE CONTRACTOR

The contractor is obliged to carry out the work well and soundly and in accordance with the provisions of the agreement. The contractor must carry out the work in such a way that damage to persons, property or the environment is limited as much as possible. The contractor is furthermore obliged to follow the orders and instructions given by or on behalf of the client, provided these orders and instructions may be regarded as reasonable.
The work and its execution are the contractor's responsibility from the start date up to and including the day on which the work is considered to be completed in the contractor's opinion (as referred to in article 8 para. 1 of these general terms and conditions).

Article 6: LIABILITY OF THE CONTRACTOR

The contractor will only be liable for damage arising directly from foreseeable and avoidable serious attributable shortcomings and directly related to (the execution of) the work, unless this damage is the result of exceptional circumstances against the harmful consequences of which the contractor need not have taken appropriate measures and it would be unreasonable to have the damage charged to his account. A similar limitation applies with respect to third parties, auxiliary persons and/or staff members that the contractor uses in the performance of its work.
Any (statutory) duty of the contractor to compensate the client for damage, on whatever grounds, is at all times limited to compensation of — exclusively — the direct damage (as referred to in para. 6 of this article) up to a maximum of the contract sum, but never more than the amount paid out or reimbursed in the relevant case by the contractor's insurance (e.g. CAR and/or liability insurer and/or any insurance of the client), increased by the (possible) deductible of the contractor.
If and insofar as the contractor's insurer, for whatever reason, should not proceed to payment or reimbursement, as referred to in para. 2 of this article, then any (statutory) duty to compensate damage, on whatever grounds, of the contractor is limited to a maximum of €2,500.00 per case.
If and insofar as, for whatever reason, the contractor's insurer does not proceed to payment or reimbursement, as referred to in para. 2 of this article, or one (or more) limitation(s) of the contractor's liability, as referred to in this article, is (are) contrary to applicable mandatory law or is not upheld by the court (for example due to conflict with reasonableness and fairness) and this would lead to liability of the contractor for damage (indirect damage possibly included) exceeding €2,500.00, then the liability, or the (statutory) duty to compensate damage, of the contractor is limited to a maximum of €2,500.00.
The maximum amounts referred to in paras. 2 to 4 of this article, however, lapse if, but exclusively insofar as, the damage is (partly) the result of intent, deliberate recklessness or gross fault on the part of the contractor.
Direct damage shall be understood to mean exclusively:

material damage to the property of the client;
reasonable costs incurred by the client to establish the liability and (the extent of the direct) damage;
reasonable costs incurred by the client to prevent or limit the damage, insofar as the client demonstrates that these costs have led to a limitation of the direct damage;
reasonable costs incurred by the client to obtain satisfaction out of court, as referred to in article 6:96 para. 1, sub c, of the Dutch Civil Code.

The contractor can under no circumstances be held liable for, or obliged to compensate, any indirect and/or incidental damage, unless the applicable mandatory law does not permit this exclusion, or at least a complete exclusion, of (part of) this damage. Indirect and/or incidental damage is understood to mean, among other things (but not exclusively): consequential damage, loss of turnover and/or profit, missed savings, damage due to business stagnation or standstill and/or costs incurred to prevent, establish or limit indirect and/or incidental damage and/or the liability for it, costs incurred to obtain satisfaction out of court for the indirect/incidental damage. Should the contractor nevertheless be liable for indirect damage, then the provisions of para. 4 of this article apply (including direct damage).
The contractor is furthermore not liable for the consequences of incorrect information provided by the client.
In all cases, the period within which the contractor can be held liable for compensation of damage is limited to 6 months after delivery (as referred to in article 9 of these general terms and conditions). In the event that the client is a natural person not acting in the exercise of a profession or business, a maximum period of one year after delivery applies. These periods are expiry periods. If legal proceedings are not brought before the competent court no later than within these periods, then the underlying right of claim irrevocably lapses. These periods cannot be interrupted other than by bringing a dispute before a competent court.
The client loses his rights against the contractor, is liable for all damage and indemnifies the contractor against any claim by third parties regarding compensation of damage, among other things in the following non-exhaustively listed cases:

the aforementioned damage arose through improper use and/or use contrary to the contractor's instructions and/or improper storage (goods must be stored in the original packaging in accordance with the instructions on the packaging or in accordance with the contractor's instructions) of the delivered goods by the client;
the aforementioned damage arose because the client did not act in accordance with the instructions and/or advice given by the contractor or third parties;
the aforementioned damage arose through errors or inaccuracies in data, materials, information carriers and the like provided and/or prescribed to the contractor by or on behalf of the client.

Article 7: DURATION OF EXECUTION, POSTPONEMENT OF DELIVERY

Stated (delivery) periods and periods within which work must be performed will be observed as much as possible, but can never be regarded as a strict deadline, unless expressly agreed otherwise. In the event of exceeding the periods referred to in this article, the contractor must therefore always be given notice of default in writing, whereby the contractor is given a reasonable period to still perform. Without prior written notice of default, the contractor does not enter into default.
If the period within which the work will be delivered is expressed in workable working days, a working day is understood to mean a calendar day, unless it falls on a rest day or public holiday, holiday, or other non-individual day off that is generally recognized or recognized at the location of the work, or prescribed by the government or by or pursuant to a collective labour agreement. Working days, or half working days respectively, are considered unworkable when, due to circumstances not at the contractor's expense, work cannot be carried out on them by the majority of the workers or machines for at least five hours, or at least two hours respectively.
If the delivery of the work were to take place on a day that is not a working day as described in the first paragraph, the next working day counts as the agreed day of delivery.
Without prejudice to the provisions of para. 1 of this article, the contractor is entitled to an extension of the period within which the work will be delivered if, due to force majeure, due to circumstances at the client's expense, or due to changes in the agreement or in the conditions of execution, the contractor cannot be required to deliver the work within the agreed period.
If the start or progress of the work is delayed by factors for which the client is responsible, the damage and costs arising for the contractor as a result must be compensated by the client to the contractor.

Article 8: INSPECTION AND APPROVAL

A reasonable period before the day on which the work will be completed in the contractor's opinion, the contractor invites the client in writing to proceed with inspection of the work. The inspection takes place as soon as possible, but no later than within eight days after the aforementioned day. The inspection takes place by the client in the presence of the contractor and serves to establish whether the contractor has fulfilled his obligations under the agreement.
After the work has been inspected, the client notifies the contractor in writing within eight days whether or not the work has been approved, in the first case stating any minor defects present as referred to in the sixth paragraph, in the latter case stating the defects that are the reason for withholding approval. If the work is approved, the day of approval is deemed to be the day on which the relevant notification was sent to the contractor.
If a written notification of whether or not the work has been approved is not sent to the contractor within eight days of the inspection, the work is deemed to have been approved on the eighth day after the inspection.
If the inspection does not take place within eight days after the day referred to in the first paragraph, the contractor may send a new request to the client by registered letter, requesting that the work be inspected within eight days. If the client does not comply with this request, the work is deemed to have been approved on the eighth day after the day referred to in the first paragraph. If the client does comply with this request, the second and third paragraphs apply accordingly.
The work is, even if the previous paragraphs of this article have not been followed, deemed to have been approved by the client if and insofar as the work is actually put into use or can be put into use, in other words is sufficiently ready to be put into use. The day of putting the work or part of it into use counts as the day of approval of the entire work.
Minor defects that can conveniently be repaired within the maintenance period (as referred to in article 9 para. 2 of these general terms and conditions) may not be a reason for withholding approval, provided they do not stand in the way of any putting into use.
With regard to a re-inspection after withholding of approval, the above provisions apply accordingly.

Article 9: DELIVERY AND MAINTENANCE PERIOD

The work is considered delivered if it is, or is deemed to be, approved in accordance with article 8. The day on which the work is, or is deemed to be, approved counts as the day on which the work is considered delivered.
The maintenance period runs for 30 days and commences immediately after the day on which the work is considered delivered in accordance with the first paragraph.
The contractor is obliged to promptly repair the minor defects referred to in article 8, sixth paragraph.
The contractor is obliged to repair as soon as possible any defects that appear during the maintenance period, with the exception, however, of those for which the client bears responsibility on the grounds of article 4, first paragraph, and/or for which he is liable on the grounds of article 4, second paragraph, and with the exception of defects that the client could have discovered upon delivery. The contractor's obligation lapses if there is intent or deliberate recklessness on the part of the client, or when the defect arose through improper use and/or use contrary to the contractor's instructions/advice and/or improper storage.

Article 10: LIABILITY AFTER DELIVERY

After delivery, the contractor is no longer liable for shortcomings in the work, except where the work or any part thereof, through the contractor's fault, contains a defect that the client could not reasonably have identified earlier and the contractor has been notified of that defect within a reasonable period after discovery, which period is set at a maximum of two weeks after discovery. For defects reported later, the contractor is not liable.
The legal claim on the grounds of the defect referred to in the previous paragraph is inadmissible if it is brought after the lapse of six months following the expiry of the delivery. However, in the event that the defect referred to in the first paragraph must be regarded as a serious defect, the legal claim is inadmissible if it is brought after the lapse of three years following the expiry of the maintenance period. A defect is only to be regarded as a serious defect if it endangers the soundness of the building or of an essential part thereof.

Article 11: SUSPENSION, TERMINATION OF THE WORK IN AN UNFINISHED STATE AND CANCELLATION

The client is not authorized to suspend and/or terminate and/or dissolve the execution of the work in whole or in part, other than in the case of very serious attributable shortcomings of the contractor.
The client waives the statutory right to cancel the agreement in whole or in part.

Article 12: BUILDING MATERIALS

All building materials to be processed must be of good quality, suitable for their purpose and meet the requirements set.
The contractor gives the client the opportunity, at his request, to inspect building materials. The inspection must take place upon their arrival at the work (possibly on agreed samples) or at the first opportunity thereafter, provided that in the latter case the progress of the work is not jeopardized. The contractor is entitled to be present or represented at the inspection.
The client is entitled to have building materials examined by third parties. The costs involved are at his expense, except in the event of rejection, in which case the costs are at the contractor's expense. Building materials made available by the client are deemed to have been approved.
In the event of rejection of building materials, both the client and the contractor may demand that a sealed sample, drawn by mutual agreement and certified by both, be retained.
The building materials coming from the work, of which the client has declared that he wishes to keep them, must be removed by him from the work. All other building materials are removed by the contractor, without prejudice to the client's liability on the grounds of article 4, fifth paragraph.
For the building materials supplied, the client bears the risk of loss and/or damage from the moment they have been delivered to the work, during the time they remain there outside normal working hours under the client's supervision.

Article 13: ADDITIONAL AND REDUCED WORK / COMPENSATION IN THE EVENT OF STAGNATION

Settlement of additional and reduced work and compensation in the event of stagnation of the work takes place, among other things:

in the event of changes to the agreement or the conditions of execution, or in the event of a modified execution, even if these are initiated by the contractor, provided these changes are carried out in the client's interest;
in the event of deviations from the amounts of the provisional sums, as referred to in para. 4 of this article;
in the event of deviations from adjustable quantities;
in the cases referred to in article 19;
in the event that the execution of the work stagnates for any reason whatsoever, where the stagnation is not attributable to the contractor. The fixed compensation is then a minimum of 2% of the total contract sum, increased by all additional work, per calendar day that the stagnation continues. If the actual damage suffered is higher, the actual damage suffered can be claimed.

If, upon the final settlement of the work, it appears that the total amount of the reduced work exceeds the total amount of the additional work, the contractor is entitled to an amount equal to 10% of the difference between those totals.
Changes to the agreement or the conditions of execution will be agreed in writing. The absence of a written order does not affect the claims of the contractor and the client to settlement of additional and reduced work. In the absence of a written order, the burden of proving the change rests on the party making the claim.
Provisional sums are amounts stated in the agreement, which are included in the contract sum and which are intended for either:

the acquisition of building materials, or
the acquisition of building materials and the processing thereof, or
the performance of work, which is insufficiently precisely determined on the day of the agreement and which must be further specified by the client. For each provisional sum, the agreement states what it relates to.

For the expenditure to be charged to provisional sums, the prices charged to the contractor, or the costs incurred by him, respectively, are used, to be increased by a contractor's fee of 10%.
If a provisional sum relates exclusively to the acquisition of building materials, the costs of processing them are included in the contract sum and are not settled separately. These costs will, however, be settled against the provisional sum on which the acquisition of those building materials is settled, insofar as, due to the specification given to the provisional sum, they are higher than those which the contractor reasonably had to take into account.
If a provisional sum relates to the acquisition of building materials and the processing thereof, the processing costs are not included in the contract sum and are settled separately against the provisional sum.
If adjustable quantities are included in the agreement, and these quantities prove to be too high or too low to realize the work, settlement will take place of the additional or reduced costs arising from that deviation.
If the contractor is entitled to compensation for additional work, settlement takes place at the prices customarily applied by the contractor (if there is a contractor's estimate, at the unit prices from that estimate), to be increased by a contractor's fee of 10%. Payment of the additional work by the client must take place immediately after its execution. The contractor has the right to demand payment of 50% of the additional work to be carried out from the client in advance, failing which the contractor cannot be obliged to carry out this additional work. Reduced work is settled at the prices customarily applied by the contractor (if there is a contractor's estimate, at the unit prices from that estimate). The client is not entitled to a refund of the contractor's fee of 10% in this respect.

Article 14: PAYMENT IN INSTALMENTS

If payment in instalments has been agreed, the contractor sends the relevant instalment invoice to the client each time upon or after the falling due of a payment instalment.
The contractor is authorized to increase the amount of an instalment on the invoice by a credit restriction surcharge of a maximum of 2%. The surcharge becomes due if payment takes place after the due date indicated in the third paragraph.
Payment of an instalment must take place no later than 14 days after the day on which the contractor sent the instalment invoice to the client, all without prejudice to the provisions of article 16.

Article 15: FINAL SETTLEMENT

Within a reasonable period after delivery, the contractor submits the final settlement.
The final settlement offers a complete overview of everything the parties owe and owed to each other under the agreement. To this end, the final settlement includes, among other things:

the contract sum;
a specification of the additional and reduced work;
a specification of everything the parties have and had to claim from each other on the grounds of the agreement.

The contractor is authorized to increase the amount of the final settlement on the invoice by a credit restriction surcharge of a maximum of 2%. The surcharge becomes due if and insofar as payment takes place after the due date indicated in the fourth paragraph.
Payment of the amount of the final settlement owed to the contractor must take place no later than 30 days after the day on which the contractor submitted the final settlement, all without prejudice to the provisions of article 16.

Article 16: SUSPENSION AND PAYMENT

If the work carried out does not comply with the agreement, the client has the right to suspend payment in whole or in part. The amount involved in the suspension must be in reasonable proportion to the shortcoming.

Article 17: DEFAULT OF THE CLIENT

If the client is in default, whether or not partially, with the payment of what he owes the contractor under the agreement, he owes the statutory interest on it from the due date. If, after the lapse of 14 days following the due date, payment has still not taken place, the interest percentage referred to in the previous sentence is increased by 2.
If the client does not pay on time, the client is furthermore obliged to fully compensate the extrajudicial and judicial costs related to the collection of the claim, including all full actual costs calculated for legal assistance and legal advice, such as full bailiff's and lawyer's costs and any costs of other third parties, the amount of which is set at a minimum of 15% of the total outstanding amount (exclusive of VAT) with a minimum of €500.00 (in words: five hundred euros), all expressly in deviation from the Liquidation Rate of the courts and courts of appeal.
The contractor may, in circumstances as determined above in para. 2 or in circumstances corresponding thereto, without further notice of default or judicial intervention, dissolve the agreement in whole or in part, whether or not combined with a claim for compensation.
If the client has not fulfilled his payment obligations on time, the contractor is authorized to suspend the fulfilment of the obligations to deliver or to perform work entered into towards the client, until payment has been made or proper security has been provided for it. The same applies even before the moment of being in default, if the contractor has the reasonable suspicion that there are reasons to doubt the client's creditworthiness.
Payments made by the client always serve first to settle all interest and costs owed, and subsequently to settle the oldest due invoice amounts that have been outstanding the longest, even if the client states that the payment relates to a later invoice.
Until the moment at which the client has fully fulfilled his related payment obligations towards the contractor, the client is not authorized to give delivered goods to third parties in pledge and/or to establish a non-possessory pledge on them or otherwise encumber or dispose of them, and/or to bring the goods into the actual control of one or more financiers for storage. If the client acts contrary to this provision, this will be regarded as an attributable shortcoming on his part. The contractor may then, immediately, without being obliged to any notice of default, suspend its obligations under the agreement, or dissolve the agreement, without prejudice to the contractor's right to compensation for damage, costs, lost profit and interest included therein.
The contractor is at all times entitled to set off claims — whether or not due — against claims the contractor has against the client. Insofar as any consent on the part of the client is required, this consent is deemed to have been granted to the contractor unconditionally and irrevocably through acceptance of these general terms and conditions.

Article 18: DEFAULT OF THE CONTRACTOR

If the contractor does not fulfil his obligations regarding the start or continuation of the work and the client wishes to give him notice in connection therewith, the client will give him written notice to start or continue the execution of the work as soon as possible.

Article 19: MODIFIED EXECUTION

If, during the execution of the work, it appears that the work or a part thereof can, due to unforeseen circumstances, only be carried out in a modified manner, the party who first becomes aware of this circumstance enters into consultation with the other party, unless there is a particular urgency or a particular interest. The contractor in principle points out the financial consequences to the client, but failure to do so does not release the client from compensating additional work, since he is deemed to understand that a modified execution may entail additional/reduced work costs. An agreed modified execution is settled as additional and reduced work, and a non-agreed modified execution is also settled as additional and reduced work, since the client is deemed to understand that a modified execution may entail additional/reduced work costs.

Article 20: IMPOSSIBILITY OF EXECUTION

If the execution of the work becomes impossible because the thing on or to which the work must be carried out perishes or is lost without this being attributable to the contractor, the latter is entitled to a proportionate part of the agreed price on the basis of the work performed and costs incurred, subject to the provisions of para. 2 of this article.
In the event of attributability to the client, the contractor is in that case entitled to the entire contract sum/price, increased by the costs he has had to incur as a result of the non-completion and reduced by the costs saved by him due to the termination. The contractor sends the client a specified final settlement of what the client owes as a result of the cancellation.

Article 21: RETENTION OF TITLE

The contractor reserves the ownership of goods delivered and to be delivered until the moment at which the client has fully fulfilled his related (payment) obligations towards the contractor. Those payment obligations consist of paying the purchase price, contract price or price of the order, increased by claims regarding work performed related to that delivery and/or order, as well as claims regarding any compensation because the client has fallen short in the fulfilment of his obligations.
The client is obliged to immediately notify the contractor in writing of the fact that third parties assert rights to goods on which a retention of title rests pursuant to this article.

Article 22: FINES

Fines imposed on the client by or on behalf of the government, regardless of under which law, will never be recoverable from the contractor.

Article 23: DISPUTES

Dutch law exclusively applies to the agreements concluded between the contractor and the client.
Disputes arising from the agreements will be submitted to the competent judge of the Oost-Brabant District Court.