Article 1 – Definitions
In these Terms & Conditions the following terms have the following meanings:
a. Contractor:
VIC Activating Landscapes B.V., with its registered office at Magnesiumweg 9 in Amersfoort, which offers and performs the following work.
b. work:
within the meaning of these Terms & Conditions
1. Preparing and performing horticultural, agricultural and related work for the construction and/or maintenance of grounds and green areas, gardens and other green spaces, both indoors and outdoors. All work or activities carried out in connection with the work referred to above are also governed by these Terms & Conditions.
2. The delivery of materials in connection with the work referred to above at 1.
3. Giving advice, drawing up plans and budgets for the work and the performance of the work.
c. materials:
• living materials: material requiring care and maintenance in order to stay alive, to grow and/or to develop.
• dead materials: all other materials, including products that fall within the scope of the Contractor's assignment/area of expertise.
d. Client:
Any legal entity or natural person acting in the course of their profession or business, or on their own behalf as a consumer, who instructs a contractor to perform work and/or deliver materials, as described under b and/or c of this article.
e. consumer:
A natural person not acting in the course of a profession or business.
f. contract price:
The total amount determined in advance between the Client and the Contractor for the performance of the work and/or delivery of materials agreed in that respect.
g. work on a cost-plus basis:
All work between the Client and the Contractor, agreed as referred to under b., whereby the price is determined according to the time worked and the materials processed, on the basis of an hourly wage and price for the materials agreed in advance.
h. hourly wage:
The payment for the performance of work by one person during one hour. The hourly wage is based on the Contractor's legal wage regulations in force at the time of the work, increased by surcharges for national insurance contributions, operating expenses and contractor's remuneration. The Client will be charged for the total number of hours worked on behalf of the Client within the context of the agreed assignment, including the time spent on travelling to and from the work.
Article 2 – Applicability and publication
1. These Terms & Conditions apply to all invitations to tender, all agreements for the performance of work, purchase and sale agreements, as well as all other agreements between the Contractor and the Client.
2. The Contractor explicitly rejects the applicability of any Terms & Conditions used by the Client.
Article 3 – Offer/tender
1. Before submitting an offer, the Contractor obtains all the information relevant to the performance of the work. The Client is obliged to give the Contractor the opportunity to obtain this information and to provide the Contractor on its own initiative with all information relevant to the proper execution of the assignment. The Contractor prepares the offer on the basis of the information known to it and provided by the Client. Should this information prove to be incomplete or incorrect, the consequences thereof will be at the expense and risk of the Client.
2. The Contractor submits an offer in writing. In writing is also understood to mean electronically (by email).
3. The offer is dated and irrevocable for 30 days after the offer date, unless the offer indicates otherwise.
4. The offer contains an unambiguous work description of all work to be performed, including pricing based on the information provided by the Client to the Contractor. The offer also contains the (working) drawings and calculations as much as possible, as well as their validity period and the contact person of the Contractor.
5. Unless explicitly agreed otherwise, the Contractor reserves all intellectual property rights to all designs, images, drawings and sketches provided. The copyrights thereto, for example, are vested in the Contractor. The designs, images, drawings and sketches must be returned forthwith at the Contractor's first request, without prejudice to other legal measures available to the Contractor to safeguard these rights.
6. The Client is prohibited from reproducing, disclosing, exploiting, using or exhibiting in any way material of the Contractor that is subject to intellectual property rights, including copyrights, without the permission of the Contractor. If the assignment for performance of the work is not given to the Contractor, the offer complete with designs, images and drawings must be returned to the Contractor within 14 days of the date of the decision, unless another agreement has been made in this respect. Without the express and written permission of the Contractor/copyright holder, the Client is not permitted to implement the design itself or to have it implemented by third parties.
7. Unless otherwise agreed in writing, the Client reimburses the Contractor for the preparation, design and drawing costs in the event that the Contractor was invited to carry out drawing work but was not given an assignment to perform work and/or deliver goods.
8. The offer provides insight into the pricing method used for the work to be performed: contract price or cost-plus pricing. In the case of a contract price, the Parties agree on a fixed amount for which the work will be performed. In the case of cost-plus basis, the Contractor provides an accurate statement of the price indicators such as the hourly rate of the people, machines and unit prices of the materials required.
9. Additional and less work will be recorded in writing as much as possible and mutually agreed upon.
10. The offer states the payment conditions and the payment arrangement. All amounts and prices stated in offers or agreements are exclusive of VAT.
Article 4 – Agreement
1. The agreement to contract work, to perform work on a cost-plus basis and/or to purchase or sell, as well as the supplementation and/or amendment thereof, is concluded by the Client's acceptance of the offer. This acceptance takes place in writing and with due observance of the provisions of article 4, paragraphs 2 and 4.
2. Acceptance in writing is effected by the Client signing the offer for approval and subsequently handing it over or returning it to the Contractor, no later than 30 days of the offer date, unless otherwise stated in writing in the offer.
3. After changes to the offer, a new offer will be made. In that case, paragraphs 2 and 3 apply again.
4. The offer is deemed to have been accepted unchanged, if and at the moment that the Client agrees to it, or clearly permits it or allows the Contractor to start with the performance of the work.
5. The Contractor is in no way bound by what is stated in prospectuses, leaflets and/or publications, images and drawings. The information stated therein does not bind the Contractor, unless the Contractor confirms this in writing.
6. It is aware of the presence of cabling, pipes and any other items, before the start of any excavation work.
Article 5 – Amendments to the agreement
1. Amendments to the agreement, including deviations from these Terms & Conditions, are agreed upon and recorded in writing. This does not apply to the price changes as referred to in article 5.
2. Amendments to the agreement are considered as additional work if a higher price would result from it and as less work if a lower price would result from it.
3. Additional and less work will be quoted in writing as much as possible, without prejudice to the obligation to pay the principal sum.
Article 6 – Deliveries
1. All deliveries by the Contractor will be invoiced, unless they form part of the agreed contract price and are therefore included in it, without prejudice to the fee payable for transport, processing and/or installation.
2. The Contractor guarantees the authenticity of the living materials it delivers, in accordance with the description in the offer and the agreement. The Contractor will monitor the good quality composition of the materials to be delivered as carefully as possible, all this with due observance of the statutory provisions applicable thereto and in line with the intended purpose or use known to the Contractor. In the event that the agreement concerns the full or partial delivery of materials, the following applies upon delivery to the Client: In the event of damage to materials, the Client must note this on the receipt and furthermore complain in writing to the Contractor within two working days of delivery, failing which the Client is deemed to have accepted the goods as such. If, upon delivery, there is no opportunity to inspect the goods delivered, the Client must also note this on the receipt.
3. The Contractor guarantees the regrowth of living materials delivered and processed by it during the next growing season, provided that Contractor has been instructed to take care of this, unless exceptional weather and/or terrain conditions or (other forms of) force majeure are involved. In the latter cases, the loss will be compensated by the Contractor up to a maximum of 10% of the value of the relevant good. The amount of the loss percentage is determined by the amount of the total price of the living product/products delivered and relevant in this respect.
4. If, in the opinion of the Contractor, the work cannot performed (on time) due to weather and/or temporary site conditions, it has the right - without this entitling the Client to compensation for damage - to suspend the work until the conditions referred to above have ended. The Contractor thereby has the right to further postpone the planting if, in its opinion, this is necessary in connection with rooting or regrowth of the material delivered.
5. The Contractor is not liable for (the consequences of) materials delivered or prescribed by the Client, or a working method prescribed by the Client, if those materials or working method prove to be incorrect and the Contractor did not know or could not have known this, or if the Contractor warned the Client about this without it leading to a change in the assignment.
Article 7 – Completion
Completion of contracted work is understood to mean the actual completion and delivery to the Client. The work is considered completed in full when the Contractor informs the Client in writing that the work has been fully performed. Furthermore, the work is considered to be completed when the Client puts the work (again) into use, on the understanding that when part of the work is put into use, that part is considered to be completed.
Article 8 – Transport risks
Unless otherwise agreed in writing, all goods are transported at the Contractor's risk.
Article 9 – Payment/late payment
1. Invoices must be paid by the Client within 30 days of the invoice date and in the manner specified in the agreement, unless the Parties agree otherwise in writing. Compensation or set-off are expressly excluded.
2. If payment in instalments has been agreed, the Client must pay in accordance with the instalments and the percentages as determined in the agreement.
3. The Client is in default from the time that the agreed payment term has expired. This default will not be cured in the event that the Client receives a final payment reminder from the Contractor after the expiry of that term and the Client thereby is given the opportunity to pay within 7 days after receipt of this reminder.
4. The Client owes interest to the Contractor on (the part of) the payment that has not been made on time, from the expiry of the payment term until the day of full payment. This interest is equal to the statutory commercial interest. The Client is also liable for all extrajudicial (collection) costs, including the costs incurred for drawing up and sending demands, conducting settlement negotiations and other actions in preparation of possible legal proceedings, as well as court costs.
5. Persons employed by the Contractor who do not have a relevant explicit power of attorney cannot be paid in discharge of a payment obligation.
6. In the event of late payment, the Contractor has the right to suspend performance of the agreement until payment has been made.
Article 10 – Agreements by staff
1. Arrangements or agreements with staff of the Contractor who are not authorized to act do not bind the latter, unless the Contractor has confirmed these in writing.
2. In this context, all staff who do not have power of attorney should in any case be regarded as staff not authorized to act, as inter alia evidenced by the Commercial Register.
Article 11 – Environmental aspects during the performance of the work
1. The Contractor ensures environmentally sound disposal of the waste and/or residues that are released during the performance of its work.
2. The resulting costs will be borne by the Client.
Article 12 – Retention of Title
1. All goods delivered, insofar as not permanently fixed, remain the property of the Contractor as long as they have not been paid for or not fully paid for.
2. Insofar as the Contractor’s retention of title on the goods delivered is extinguished by specification or otherwise, the Contractor reserves the right of a non-possessory pledge on a good, to provide security for all that the Client owes or will owe to the Contractor, for whatever reason. At the first request of the Contractor, the Client must cooperate in establishing a non-possessory pledge on this good.
Article 13 – Maintenance work
1. Agreements for carrying out maintenance are concluded for an indefinite period of time, unless explicitly agreed otherwise in writing.
2. Termination of this agreement can only be effected by both Parties by registered letter addressed to the other Party with due observance of a three-month notice period towards the end of the current contract period.
Article 14 – Force majeure
1. If the agreed work temporarily cannot be performed or can only be performed in part for a maximum of 90 days due to force majeure, the Contractor immediately contacts the Client to make arrangements for alternative performance of the work.
2. In the event that the Contractor is unable to perform the work in accordance with the agreement, because preparatory and/or other work at the Client’s premises has not been carried out or has not been carried out on time, the Contractor will contact the Client to discuss alternative performance of the work. This circumstance constitutes a failure on the part of the Client and does not affect the use by the Contractor of its rights under the law, the agreement and these Terms & Conditions.
3. In the event of force majeure, the delivery and other obligations of the Contractor may be suspended. If the period, in which performance of the Contractor’s obligations is no longer possible due to force majeure, lasts longer than 90 days, both Parties have the right to terminate the agreement without any obligation to pay compensation.
4. If, when force majeure occurs, the Contractor has already partially fulfilled its obligations or could only partially fulfil its obligations, the Contractor is entitled to invoice separately for what it has already performed and/or delivered. In that case, the Client is obliged to pay this invoice as if it were a separate contract.
Article 15 – Performance of work and contract termination
1. In the event of the death of the Contractor before the completion of the work, its successors by universal title are not obliged to perform or complete this work, but the assignment will be terminated. In that case, the contract price must be paid by the Client to successors in title, minus a reasonable amount for the unfinished part of the work, or in case of work on a cost-plus basis, the amount due until the time of the death of the Contractor, calculated in accordance with these Terms & Conditions.
2. The claim for payment of all that is owed becomes in any case immediately due and payable to the Contractor, if the Client is declared bankrupt, applies for a suspension of payments, an application for its placement under guardianship is filed, if any attachment is levied on the goods of the Client and upon the death of the Client, or upon liquidation or dissolution of the Client's company or if the statutory debt management scheme is declared applicable.
3. The Contractor has the right to suspend performance of the agreement for an indefinite period of time in the event that the Client has been declared bankrupt, when the statutory debt management scheme has been declared applicable, as well as in the event that the Client has filed an application for suspension of payments. In these cases, the Contractor is also entitled to terminate the agreement, without prejudice to the Contractor's right to claim compensation.
Article 16 – Liability
1. 1a. The Contractor is liable for direct damage caused to the building and inventory, persons or property of persons during the performance of the agreement, which is due to negligence, carelessness or wrongful acts on the part of the Contractor, its staff or any subcontractors. The Contractor is not liable for any indirect or consequential loss.
1b. The Client is obliged to take all those measures within reasonable limits that can, or could have, prevented or limited the damage.
2. The right to compensation for damage lapses if it is not invoked on time, as described in these Terms & Conditions.
3. With due observance of the provisions of this article, the Contractor is liable for damage caused by/during the performance of the agreement up to a maximum of the amount paid out by the Contractor's liability insurer, with a maximum of € 1,000,000 per event. If the Client wishes to agree on a higher maximum liability, the Client must inform the Contractor thereof before concluding the agreement, so that the Contractor can then take out an additional public and professional liability insurance to this end. The limitation of liability does not apply in the event of gross negligence or an intentional act or omission on the part of the Contractor.
4. Any liability of the Contractor for defects relating to the materials delivered is limited to the price agreed for the materials delivered. With regard to dead materials delivered, the liability of the Contractor does not extend beyond what is possible on the basis of the warranty provisions of the supplier. With regard to deliveries of sand, earth, topsoil and compost, the Contractor cannot be held liable, or can no longer be held liable respectively, if confusion [vermenging] has occurred in the context of regular reprocessing or processing with soil present at the client's premises.
5. The Client indemnifies the Contractor against claims by third parties against the Contractor, if the Contractor has caused damage because insufficient, incorrect or incomplete information has been provided by or on behalf of the Client, which, if this information had been known to the Contractor, could have led to prevention or limitation of the damage.
6. The contractor is not liable if the damage is due to an intentional act or omission, gross negligence or an otherwise serious imputable act, or injudicious use or improper use by or on behalf of the Client.
7. The Contractor is not liable for damage resulting from subsidence of soil/earth or top soil if this subsidence is in no way related to the installation, treatment or processing of earth, soil, sand bed or top soil.
8. The Contractor is not liable for any form of damage resulting from putting part of the work, or the entire work, into use prematurely.
9. The Contractor is not liable for any form of damage resulting from the use of materials prescribed by the Client or the implementation of a design originating from the Client.
Article 17 – Complaints
1. Only written complaints about visible defects in the performance of the work and the delivery of materials, received within 14 days of the invoice date, will be dealt with by the Contractor. Other written complaints regarding the performance of the work or the delivery of materials must be received no later than 60 days after completion of the work or the last day of performance of the work or delivery of materials respectively.
2. The Client’s obligation to pay is not suspended by filing a complaint.
3. Complaints regarding the performance of the work or the delivery of the goods are not admissible if the Client has not exercised the normal care that may be expected from the Client after termination or performance of the work and/or delivery of the materials.
Article 18 – Dispute settlement procedure
All disputes arising from offers and deliveries as well as from agreements for the performance of work or purchase/sale are subject to the decision of the competent court in the district where the Contractor has its registered office. Each Party has the right to submit disputes to the Court of Arbitration for the Building Industry in the Netherlands instead of the competent Dutch court, if the cause of the dispute is (partly) of a technical nature. Disputes are only admissible before the Court of Arbitration for the Building Industry if proceedings before the competent court have not already been initiated. If a dispute is first submitted to the Court of Arbitration for the Building Industry, proceedings before the competent court are deemed to be excluded.
Disputes submitted to the Court of Arbitration for the Building Industry are subject to the Articles of Association. These are available on request from the Court of Arbitration for the Building Industry, Stationsplein 29/3, 3511 ED Utrecht, the Netherlands (telephone 00 31 30 234 32 22, fax 00 31 30 230 01 25). By concluding an agreement on the basis of these Terms & Conditions, the Parties agree to this. The award based on the dispute settlement procedure is final and binding.
Article 19 – Final provision
The Terms & Conditions have been established by VIC Activating Landscapes.