All offers, contracts and the execution thereof are governed exclusively by these general terms and conditions (hereinafter the General Terms and Conditions) of Certus Netherlands BV (hereinafter Certus Netherlands). Deviations thereto must have the express prior written agreement of Certus Netherlands.
A ‘customer’ and/or ‘buyer’ in the General Terms and Conditions means a (legal) person with whom Certus Netherlands has concluded or wishes to conclude a contract.
Article 2: General terms and conditions of contracting parties and/or third parties
The general terms and conditions of contracting parties and/or third parties shall not be applicable, unless these general terms and conditions are expressly accepted in writing by Certus Netherlands.
However, any applicability of aforementioned general terms and conditions shall not affect the applicability of Certus Netherlands’s General Terms and Conditions, unless the latter are in conflict with the general terms and conditions of contracting parties and/or third parties.
General terms and conditions and any agreed changes or additions hereto shall only be accepted by Certus Netherlands under the above-mentioned conditions and shall only apply to the designated transaction. These conditions will not automatically be applied again to subsequent transactions.
Article 3: Offers and orders
All offers and quotations are made without commitment, unless otherwise expressly noted, and are based on information, drawings, calculated material prices, etc. provided with any inquiries.
All information provided with the quote, such as sizes, weights, capacities and quantities will be described as accurately as possible on the basis of information known at that time.
Drawings, calculations, descriptions and any another documents and enclosures relating to the offers are considered as part of the offers.
Sending of offers and/or brochures, price lists etc. does not oblige Certus Netherlands to deliver and/or accept of the order.
Certus Netherlands retains the right to refuse orders without stating reasons, or to deliver cash on delivery (COD).
Article 4: Agreements
Promises, arrangements and/or agreements with subordinates of Certus Netherlands do not bind the latter, insofar as they have not been confirmed in writing by Certus Netherlands. Regarded as subordinates in this context are all employees and staff members who do not dispose over powers of signature. Customer or Buyer must check in advance whether the employee and/or staff member who makes the promises and/or with whom arrangements and/or agreements are made, is an authorized signatory.
Article 5: Contract
Subject to what is set out below, a contract is only executed after Certus Netherlands has accepted an order in writing, or has confirmed it. The order confirmation is deemed to reflect the contract accurately and completely.
Any additional arrangements and/or promises subsequently made by Certus Netherlands or its personnel, including both authorized signatories and subordinates, or made on behalf of Certus Netherlands by its vendors, agents, representatives or other intermediaries, shall only be binding for Certus Netherlands if it confirms them in writing.
For work for which by its nature and/or scope no offer or order confirmation has been sent, the invoice and/or delivery slip shall also be considered as order confirmation, which is also deemed to reflect the contract accurately and completely.
By placement of an order, the customer or buyer declares to be solvent and creditworthy.
Upon or after concluding the contract, and prior to (continued) performance thereof, Certus Netherlands is entitled to demand security from the customer or buyer that the payment as well as other obligations will be fulfilled. A customer or buyer is obliged to provide such security.
Article 6: Prices
The Gaming g other taxes, levies and rights.
All contracts are always concluded on the basis of the prices on the date of conclusion.
All work, examinations/studies, tests etc to be performed by Certus Netherlands shall be billed to the customer or buyer in accordance with the Certus Netherlands rates in effect on the date of the order and/or the usual rates.
In the event price increases should occur after a contract has been executed with Certus Netherlands, for instance through increases by the government, manufacturing prices, exchange rates etc, Certus has the right to pass on the increases to the customer or buyer. All this is without prejudice to the right of customer or buyer to terminate the contract. In that case, the customer or buyer shall owe Certus Netherlands those costs already incurred.
If desired and at their own expense, customers or buyers can have a Dutch Chartered Accountant examine the documents relating to the furnishing of proof of the passed-on price increase, as provided for in paragraph 4.
The payment of any additional costs on the basis of this article shall have to be made together with the principal amount.
Article 7: Modification of the order
If, through modifications of any kind that are made to the original order in writing or verbally by or on behalf of the customer or buyer, costs are created which are higher than those on which the quotation for the original order was based, the amount exceeding the quotation for the original order will be additionally charged to the customer or buyer.
The changes in the execution of the order still desired by the customer or buyer after the order has been submitted must be made known to Certus Netherlands by the customer or buyer in good time and in writing. If these changes are made verbally, then the risk for the correct implementation of these changes by Certus Netherlands shall be for the account of customer or buyer. In this paragraph, ‘in good time’ means at least 5 working days prior to the start of the execution of the order.
Commissioned changes can have as result that the delivery time agreed by Certus Netherlands for the change is exceeded; this overrun shall be deemed as not being the responsibility, fault of and/or imputable to Certus Netherlands.
Article 8: Cancellation
In the event a customer or buyer cancels the order and/or refuses to take delivery of items that fall outside the sphere of risk of Certus Netherlands, Certus Netherlands shall oblige said customer or buyer to bear the cost price, including wages and social charges, of the materials already purchased, whether manufactured or processed or not.
Without prejudice to what is mentioned in the previous paragraph of this article, Certus Netherlands retains all rights to demand full performance of the contract and/or full compensation/indemnification.
Items especially custom manufactured, processed, packaged etc. for the customer or buyer will not be taken back and/or credited by Certus Netherlands.
If the customer or buyer nevertheless cancels the order, said customer or buyer is obliged vis-à-vis Certus Netherlands to:
a) Pay everything already performed by Certus Netherlands; b) Compensate Certus Netherlands for the costs stemming from the cancellation; c) Compensate any currency losses that Certus Netherlands suffered owing to the fact that in connection with the order, it concluded a concurrency agreement with a bank or other third party; d) Hold Certus Netherlands harmless against claims from third parties arising from the cancellation of the order.
Article 9: Abandon delivery / sale
When obtained references and/or other information result in reasonable doubt about the payment prospects of customer or buyer, then Certus Netherlands has the right to waive the contract by notifying the customer or buyer in writing. In that case, delivery can take place with cash on delivery or by means of advance payment.
The statutory right of customer or buyer to withdraw from the contract remains unaffected.
Article 10: Delivery and delivery period
Considered as the time and date of delivery for the items delivered by Certus Netherlands are Ex Works, workplace, warehouse, supplier or any other agreed location.
Carriage paid delivery only occurs if and to the extent that Certus Netherlands has indicated this on the invoice or otherwise in writing.
Items, which are also delivered carriage paid or that travel in the name of Certus Netherlands, travel for the account and risk of the customer or buyer, whereby dispatch is considered as delivery.
Certus Netherlands has the right to deliver in parts (partial deliveries), which can be invoiced individually; in that case the customer or buyer is obliged to pay the invoices for these partial deliveries in accordance with the provisions in Article 20 of the General Terms and Conditions. Partial deliveries are treated as performance of a special order within the meaning of the General Terms and Conditions.
The indication of the delivery date is always an approximation unless otherwise expressly agreed in writing. Delivery shall be deemed to have been made within the specified period when the items leave the warehouse before the expiry of the specified period.
The agreed delivery date is not a firm date. Certus Netherlands is only liable for exceeding the date if it has been given notice of default in writing and a reasonable period for compliance is offered.
In the event of a situation as referred to in the previous paragraph, the liability of Certus Netherlands is limited to the amount for which Certus Netherlands is correspondingly insured.
The customer or buyer undertakes to enable Certus Netherlands to perform the business and/or services and/or work or have it/them performed properly and reliably, failing which Certus Netherlands has the right to proceed to dissolution of the contract.
In the event delivery, installation and/or repair of the goods has to occur at a different location than the one referred to in paragraph 1, the customer or buyer is conditionally bound to pay the travel and accommodation costs to Certus Netherlands in accordance with the applicable or known rate at the time of the order in question. Moreover, these costs remain due in the event Certus Netherlands ascertains on-site, such at its discretion, that installation and/or repair is not feasible whatever the cause.
When the other party has not taken delivery of the items after expiry of the delivery date/period, they will be stored at his/its disposal and for his/its account and risk.
If Certus Netherlands is not able to deliver within the stated delivery period, the customer or buyer shall be notified immediately with indication of the expected amount of time the aforementioned delivery date will be exceeded.
All goods and services that are commissioned to Certus Netherlands by or on behalf of the customer, which Certus Netherlands has delivered and/or installed quantities and/or types of materials to be processed beyond those expressly provided for in the contract, or when it has performed work beyond the work described in the contract, shall be charged as additional work.
Article 11: Assembly
All fixtures and/or facilities that are necessary for the preparation of the items to be assembled, and/or the proper operation of items in assembled state, shall be for the account and risk of the customer or buyer and are not the responsibility of Certus Netherlands.
At his/its expense, customer or buyer is obliged to put and maintain the premises where items are assembled in such a condition that assembly can take place without delay or problems. The corresponding work shall be the responsibility of the customer or buyer and most be done in accordance with the specifications provided by Certus Netherlands. If and insofar as the customer or buyer does not discharge this obligation, Certus Netherlands may, at its discretion, perform all work or have it done and purchase all materials necessary to do so, in order to have the assembly done efficiently. All of this shall be for the account and risk of the customer or buyer.
In fulfilment of the obligation described in the previous paragraph, the customer or buyer shall ensure for his/its account and risk that:
a) The premises intended for the assembly of the items are properly prepared, heated, illuminated and equipped with air conditioning, all of this in accordance with the Certus Netherlands specifications; b) The Certus Netherlands personnel can begin their work as soon as they arrive at the assembly location and, furthermore, and have the opportunity and time to perform their work during normal working hours, and outside normal working hours if Certus Netherlands deems it necessary; c) Suitable accommodation and/or facilities for the Certus Netherlands personnel present, as required by employment legislation; d) The access roads to the assembly location are suitable for the transport of goods; e) The necessary lockable storage places are available for materials/equipment, tools and other items; f) The agreed assistants, auxiliary tools, auxiliary and operating materials are available on time and without cost; g) The necessary items in good condition are available on site at the start and during the assembly; h) All necessary safety and other precautionary measures are taken and maintained, which also should be shown in a written declaration by the customer or buyer, signifying that the premises where the items must be erected to meet the specifications of Certus Netherlands, in particular with regard to the floor load and suitability of the building for the assembly and the use of the items.
If a delay occurs due to the non-compliance with one or more of the obligations listed in this article, the costs arising therefrom shall be borne by customer or buyer and the assembly time will be extended accordingly. In addition, Certus Netherlands has the right to (temporarily) abandon the, if this is reasonable under individual circumstances, without prejudice to the obligation of customer or buyer to pay for the items delivered (for the assembly) and to bear the expenses.
Article 12: Transport / risk
If no further indication is provided to Certus Netherlands by the customer or buyer, the mode of transport, shipping, packaging etc is determined by Certus Netherlands in accordance with good business practice and without assuming any liability. Any specific wishes of the customer or buyer with regard to transport or shipping can only be carried out, if the customer or buyer declares in writing that he shall bear the additional costs thereof.
Even if carriage paid delivery has been agreed, the shipment of goods is always done for the account and risk of the customer or buyer, even when the carrier requires that the waybills, transport addresses, etc. include a clause that all transport damage/loss is for the account and risk of the sender.
Customer or buyer must be responsible for insuring all items during the transport. The transport is only insured by Certus Netherlands if the customer or buyer has expressly requested this on his/its behalf.
Article 13: Warranty
Items sold by Certus Netherlands never provide a warranty that is longer than the one that is granted by its own suppliers.
Certus Netherlands provides a warranty period only in writing. If no written warranty period is provided, then the warranty period expires 6 months after the date of delivery.
In all cases, every warranty on delivered items and/or services ceases to have effect:
a) If no valid warranty certificate or purchase slip is submitted; b) After expiry of the warranty period provided exclusively in writing by Certus Netherlands, and if no written warranty period is provided, then after expiry of the valid warranty period in accordance with Article 13, paragraph 2; the warranty period runs for 6 months after the date of delivery; c) If work on the delivered items is or will be performed by others than Certus Netherlands or persons designated by Certus Netherlands; d) If defects on the delivered items are the result of negligence or improper use by the customer or buyer, the employees thereof or any other persons employed by them or on their behalf; e) If the customer or buyer, their employees or any other persons employed by them or on their behalf, do not use the delivered items in accordance with the agreed or intended use; f) If the defects originate or are the result of faulty materials or services, which were provided by the customer or buyer, their employees or other persons employed by them or on their behalf, for the benefit of the (end) products and/or services delivered by Certus Netherlands, and/or were installed, removed or are in any other way related to the delivered items.
Article 14: Liability
Customer or buyer shall indemnify Certus Netherlands and its personnel, or persons employed by or on behalf of Certus Netherlands, against all claims from third parties for compensation of any damage/loss suffered by third parties, caused by or otherwise connected with the items are services delivered by Certus Netherlands. Certus Netherlands excludes liability for indirect loss or damage, including consequential loss or damage, lost profits, lost savings and loss or damage through business interruption.
Notwithstanding the liability of Certus Netherlands pursuant to mandatory statutory provisions and generally prevailing rules of reasonableness and fairness, Certus Netherlands is not liable for costs, damages and interest that might arise as direct or indirect consequence of:
a) A non-attributable failure to perform, as further described in Article 15 of these General Terms and Conditions; b) Acts or omissions by the customer or buyer, their employees, or other persons employed by them or on their behalf; c) Errors and/or defects in a design, which were not noticed by customer or buyer when approving said design.
The liability of Certus Netherlands never extends beyond that provided by its suppliers.
Without prejudice to the provisions in Article 12 of the General Terms and Conditions, Certus Netherlands is not liable for damage/loss to the items delivered by it, for which it did not provide the transport.
Certus Netherlands is not liable for improper and/or incorrect installation by third parties, of items delivered by Certus Netherlands.
Certus Netherlands is not liable for damage and defects that occur as a result of improper and/or incorrect use of the delivered items.
Any liability of Certus Netherlands is always limited to the amount that would be paid out in a given case under its own insurance policy. If the liability of Certus Netherlands does not come under the coverage described in the insurance, then its liability is limited to the sum of €5,000, or to an amount that is two times the amount of the invoice relating to the delivery or service that gave rise to the liability, depending on which amount is the highest, in which case the highest amount will apply.
Article 15: Non-attributable failure to perform; force majeure
By a non-attributable failure to perform is meant: a failure that is not to be blamed on Certus Netherlands and yet pursuant to the law, judicial act or according to generally accepted social standards should be its responsibility. Causes of non-attributable failures include industrial action, excessive absenteeism by the Certus Netherlands personnel, transport difficulties, extreme weather conditions, fire, government measures, including in every case import and export bans, quota restrictions and breakdowns/business interruptions at Certus Netherlands or at its suppliers, as well as an attributable failure by its suppliers, whereby Certus Netherlands cannot/no longer fulfil its obligations vis-à-vis customer or buyer.
If in the opinion of Certus Netherlands, the cause of the non-attributable failure will be of a temporary nature, then it has the right to suspend the execution of the contract until the incident that caused the failure to perform no longer exists.
If the cause of the non-attributable failure to perform is of a permanent nature, then parties can reach a settlement on the dissolution of the contract and the consequences connected therewith.
Certus Netherlands is entitled to demand payment with respect to the services/performances that were provided in the execution of the contract with customer or buyer, before the emergence of a situation as referred to in this article.
Certus Netherlands is also entitled to invoke a non-attributable failure to perform, if the circumstances that caused the non-attributable failure to perform started after items/goods and/or services should have been delivered by Certus Netherlands.
Article 16: Complaints
With delivery of the items supplied by Certus Netherlands, the customer or buyer must make sure of the condition that the items are in, and/or that the delivered items comply with what is set out in the contract, as referred to in Article 5 of the General Terms and Conditions. If in so doing it emerges that there is damage caused to the goods, then the customer or buyer must immediately take all measures to obtain compensation from the carrier. If it turns out that the delivered items do not comply with what is set out in the contract, as referred to earlier in this paragraph, the customer or buyer must report this to Certus Netherlands in writing.
Any complaints will only be considered by Certus Netherlands if they have reached it (directly) in writing within eight working days after delivery of the items, including an exact indication of the nature and grounds of the complaints. Complaints regarding hidden defects must be made known and sent to Certus Netherlands by registered letter within eight days after the customer or buyer could have reasonably discovered the defect, but within at the most six months after the date of delivery.
Complaints about invoices must also be submitted in writing and within eight days after the dispatch date of the invoices.
Certus Netherlands must be put in a position to examine submitted complaints.
If the complaint is justified in the opinion of Certus Netherlands, it will, at its discretion, either replace or repair the items without refund of the purchase price, or accept a return of the items back with refund of the purchase price.
Article 17: Return Shipments
Return shipments that have not received prior written consent from Certus Netherlands will, at the discretion of Certus Netherlands, either be refused or stored at sender’s expense and risk.
For items sent back, the handling costs etc that arise will be charged, with a minimum of 15% of the invoice value of the items.
Article 18: Intellectual property
Certus Netherlands reserves all intellectual property rights to all designs, illustrations, drawings, samples, models etc it provides. Reproduction, publication/disclosure and copying in any way, is only permitted with the express prior written consent of Certus Netherlands.
The designs, illustrations, drawings, samples, models etc referred to in the first paragraph, remain the inalienable property of Certus Netherlands and must be returned upon first request.
Certus Netherlands is allowed to take technical measures to protect the software. If Certus Netherlands has secured the software by means of technical protection, the customer or buyer is not permitted to remove, avoid or otherwise eliminate this protection.
For every transaction carried out in violation of this provision, the customer or buyer will owe a fixed penalty of €50,000, increased by €5,000 a day for each day that a violation continues and without prejudice to the right of Certus Netherlands to claim full compensation.
Article 19: Retention of title
Unless otherwise expressly to the contrary agreed in writing, all potentially detachable and/or residual materials are property of Certus Netherlands.
All items delivered by Certus Netherlands remain its property, until the customer or buyer has completely fulfilled all demands regarding the delivered items and regarding the items still to be delivered by Certus Netherlands, as well as regarding the work performed or to be performed pursuant to this contract for the benefit of customer or buyer, as well as all demands owing to the failure to perform such contracts. The risk relating to the delivered items already passes to the customer or buyer at the moment of delivery.
In the event of non-payment of a due and payable amount, suspension of payment, petition for a moratorium on payments, bankruptcy, placement under guardianship, death or liquidation of the customer’s or buyers business(es)/affairs, Certus Netherlands shall be entitled to cancel the order or the part thereof that still has to be delivered and to demand the return to its ownership the part that may have been delivered, yet not or not fully paid without notice of default and without intervention of the courts, however without prejudice to its rights to demand compensation for any loss or damage. In these cases, every claim that Certus Netherlands has against customer or buyer is fully and immediately payable. The costs for the recovery or repossession shall be borne by customer or buyer.
The items can be resold or used by a customer or buyer within the context of their normal course of business, however they may not be given as collateral nor provided as security for a claim of a third party.
Article 20: Payment
Payment of the invoice amounts must always be made in full within 14 days after the date of invoice, unless expressly agreed otherwise in writing. The payment is only recognized as such if it is made with proper cash receipt, and if this can be shown when the transfer to the account with mention of the invoice number or the reasons for the payment is credited to the bank or giro account of Certus Netherlands.
Certus Netherlands has the right, prior to the start and even during the execution of the contract, to ask customer or buyer for advance payment of the invoiced amounts. At the start of the contract, Certus Netherlands can request that a maximum amount equal to 100% of agreed price be paid in advance, and in the event of an advance payment during the execution of the contract, this maximum is an amount equal to 4/5th of the agreed price. The requested advance payment shall never be to more than the amount equal to the agreed price.
If the customer or buyer remains in default with payment of the amount referred to in paragraph 2, Certus Netherlands has the right to stop work until such time the requested payment is made to Certus Netherlands, without prejudice to the right of Certus Netherlands to a reimbursement of costs, damages and interest.
Repairs, including the parts and materials used therefore, must always be paid in cash at delivery. This also includes the work and extra materials stemming from (once more) providing, installing, removing or anything else relating to the delivered goods/items and/or services, for which customer or buyer is indemnified by virtue of the warranty by the suppliers of Certus Netherlands.
In cases where the customer or buyer:
a. Is in a state of bankruptcy, proceeds to composition, petitions a moratorium on payments or all or part of his property is seized; b. Is deceased or placed under guardianship; c. Does not fulfill an obligation he is subject to under the force of law or these conditions; d. Fails to pay an invoiced amount or a part thereof within the allotted time; e. Proceeds to discontinuation or transfer, direct or not, of his company or a major part thereof, including the transfer/incorporation of his company into a company to be set up or already existing, or proceeds to changing the object of his company; then Certus Netherlands, through the simple occurrence of one of the aforementioned situations, has either the right to dissolve the contract with no notice of default or intervention by the courts being required, or to demand immediate payment of any amount that may be owed by the customer or buyer on the basis of the corresponding deliveries by Certus Netherlands, and this without any reminder or notification of default, all this without prejudice to the right of Certus Netherlands to demand compensation of costs, damages and interests.
Article 21: Leniency
If Certus Netherlands could not always and immediately make use of all rights belonging to it in a specific case under these General Terms and Conditions, this does not prejudice a later exercise of such rights by Certus Netherlands in applicable cases, nor that it will be required to show similar leniency later on.
Article 22: Interest and costs
If payment has not been made within the period mentioned in Article 20, then the customer or buyer is in default ipso jure and, as of the date of invoice, owes 1.5% per month (or a part thereof) on the still unsettled amount.
All court and out-of-court costs, which are incurred by Certus Netherlands in connection with the still to be obtained payment from the customer or buyer, shall be borne by the customer or buyer. The costs for out-of-court debt collection amount to at least 15% of the amount owned by the customer or buyer, including aforementioned interest, with a minimum of €100.
Article 23: Applicable Law
All offers, contracts and the performance thereof are governed exclusively by the laws of the Netherlands.
Article 24: Disputes
All disputes, including those that are only seen as such by one party, which arise from or are in connection with the contract to which the General Terms and Conditions apply, including these General Terms and Conditions themselves, shall be decided by Court in Rotterdam, insofar as permitted under the statutory regulations.
The provisions in the previous paragraph do not prejudice the right of Certus Netherlands to submit a dispute to the competent civil court, in accordance with the normal rules of jurisdiction.
Article 25: Translation of the General Terms and Conditions
If the General Terms and Conditions are translated, the Dutch text shall prevail over the translated text.