Terms and Conditions

Definitions

In these General Terms and Conditions, the following definitions apply:

General Terms and Conditions: these general terms and conditions;
Agreement: the agreement between the Client and the Contractor for the delivery of goods and/or the execution of work;
Contractor: TREC Development Services B.V.;
Client: the natural or legal person with whom the Contractor enters into an Agreement.

Applicability

2.1 The General Terms and Conditions apply to the formation, content, and execution of the Agreement, as well as to all other legal acts and legal relationships between the Contractor and the Client.

2.2 The Client is deemed to have agreed to the applicability of the General Terms and Conditions by the mere commencement of the work by the Contractor.

2.3 Any general terms and conditions of the Client are expressly not applicable to the Agreement, unless they have been accepted in writing by the Contractor.

2.4 In the event of contradictions between the provisions of the Agreement and the General Terms and Conditions, the Agreement shall prevail.

Quotations and Formation of the Agreement

3.1 A quotation from the Contractor is without obligation. The Contractor is entitled to revoke an offer accepted by the Client within two (2) working days after receipt of the acceptance.

3.2 A quotation is a single – indivisible – whole, with the understanding that no parts can be purchased separately.

3.3 The Contractor is not obliged to execute the Agreement at a price stated in the quotation and/or the Agreement if this price is based on an obvious printing or writing error or an evident calculation error.

3.4 If the costs for permits and parking are not included in the quotation amount, the Contractor is entitled to charge these costs to the Client.

3.5 The amounts mentioned in the quotation are exclusive of VAT, other taxes, recesses, skirting boards, finishing and the like, as well as drawing costs and the contractor’s commission. Unless stated otherwise in the quotation.

3.6 If more than one natural and/or legal person acts as the Client or behaves as such, all are jointly and severally liable to the Contractor.

3.7 If, after accepting the assignment, the prices of materials, auxiliary materials and raw materials – such as electricity – the prices of components purchased from third parties, wages and salaries, social security contributions, government levies, turnover tax, freight and insurance premiums undergo an increase, including price increases due to exchange rate differences in currencies in which we purchase our materials, or if our mark-ups change due to a change in one or more of the aforementioned factors – even if this occurs as a result of circumstances already foreseeable at the time of accepting the assignment – the Contractor is entitled to increase the price agreed upon at the acceptance of the assignment accordingly, taking into account any relevant existing legal provisions.

3.8 The price increases mentioned in this article shall form part of the stipulated price; the increases must be paid by the Client under the same conditions as the initially agreed price.

3.9 When determining interim payment obligations, the aforementioned price increases may be taken into account proportionately.

3.10 After the formation of the Agreement, the Client must – at the first request of the Contractor – provide sufficient security for the payment of the contract price. The costs of providing security are for the account of the Client.

3.11 The Contractor has the right to transfer its rights and obligations under the Agreement to third parties. Without the written consent of the Contractor, the Client may not transfer its rights and obligations towards the Contractor to third parties. This clause has proprietary effect.

Retention of Title

4.1 All goods delivered by the Contractor remain the property of the Contractor until the Client has fulfilled its payment obligations under the Agreement towards the Contractor. As long as the Client has not fulfilled its payment obligations, the Client undertakes to the Contractor to treat the delivered goods as a prudent owner, to keep them insured, and not to pledge, process, transfer, or hand them over to third parties. In the event of non-compliance with this obligation, the entire contract sum involved in the Agreement becomes immediately due and payable.

4.2 If the Client fails to fulfill its obligations towards the Contractor, the Contractor has the right to immediately take back the goods for which title has been reserved. To the extent necessary, the Client will grant the Contractor immediate access to buildings and/or grounds of which the Client is the owner or manager at the Contractor’s first request, so that the Contractor can reclaim its property.

Liability of the Client

5.1 The Client bears responsibility for the constructions and working methods prescribed by or on its behalf, as well as for the orders and instructions given by or on its behalf.

5.2 If building materials or aids provided by the Client, or prescribed by it, contain defects or are by their nature not suitable for the intended purpose, the Client is liable for the damage caused thereby.

5.3 The consequences of compliance with legal regulations or government orders that come into effect after the date of the quotation are for the account of the Client, unless it must be reasonably assumed that the Contractor could have foreseen those consequences on the date of the quotation.

5.4 The Client is liable for damage to the work as a result of work carried out or deliveries made by it or by third parties on its behalf.

5.5 If the commencement of the work is changed or the progress of the work is delayed by factors for which the Client is responsible, the resulting damage and costs for the Contractor must be compensated by the Client to the Contractor.

5.6 If, after the formation of the Agreement, it appears that the construction site is contaminated or the building materials coming from the work are contaminated, the Client is liable for the consequences arising therefrom for the execution of the work, unless this was clearly communicated in writing to the Contractor by the Client during the quotation stage.

Liability of the Contractor

6.1 The liability of the Contractor for damage as a result of an attributable shortcoming in the fulfillment of the Agreement, or from a wrongful act or otherwise, is limited per event (a series of consecutive events counts as one event) to the compensation of direct damage, up to a maximum of the amount of the fees received by the Contractor for its work under the Agreement over the six (6) months preceding the damage-causing event. The liability of the Contractor for direct damage shall never exceed a total of
EUR 25,000.00.

6.2 Direct damage is exclusively understood to mean all damage consisting of:

a) damage directly caused to material objects;

b) reasonable and demonstrable costs to urge the Contractor to properly fulfill the Agreement;

c) reasonable costs to determine the cause and extent of the damage, insofar as it relates to direct damage as referred to in this article 6.2; and

d) reasonable and demonstrable costs incurred by the Client to prevent or limit direct damage as referred to in this article 6.2.

6.3 The liability of the Contractor for indirect damage is excluded. Indirect damage is understood to mean all damage that is not direct damage and thus in any case, but not limited to, consequential damage, damage due to business interruption, lost profit, missed savings, and reduced goodwill.

6.4 The exclusions and limitations mentioned in this article 6 do not apply if the damage is the result of intent or deliberate recklessness on the part of the Contractor or its management.

6.5 Unless fulfillment by the Contractor is permanently impossible, the liability of the Contractor due to an attributable shortcoming in the fulfillment of the Agreement only arises if the Client immediately gives the Contractor written notice of default, setting a reasonable term for the rectification of the shortcoming, and the Contractor continues to fail attributably in the fulfillment of its obligations even after the expiry of that term. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that the Contractor is given the opportunity to respond adequately.

6.6 Any claim for damages by the Client against the Contractor that is not specified and explicitly stated shall lapse by the mere passage of twelve (12) months after the claim arose.

6.7 The Contractor shall have and maintain adequate insurance for liability in accordance with this article during the Agreement.

Payment

7.1 Payment must be made in installments: 40% to be invoiced upon assignment, 30% to be invoiced at the start of work, 25% to be invoiced at 90% completion of the work, 5% to be invoiced upon delivery, unless otherwise agreed.

7.2 Payment must be made without any deduction and/or set-off and/or suspension within fourteen (14) days after the invoice date. Any complaints must be made within fourteen (14) days after the invoice date. After this period, the invoice is considered correct, complete, and unconditionally accepted.

7.3 In the event of late payment, the Client is deemed to be in default by operation of law and the Contractor has the right to charge the statutory commercial interest and the statutory extrajudicial collection costs from the due date without any notice of default.

7.4 The Contractor is entitled to set off amounts that it has or will have to claim from the Client at any time against amounts that the Contractor will owe to the Client at any time.

7.5 A payment by the Client shall first serve to settle the overdue interest and then to settle the extrajudicial costs associated with the claim. Thereafter, payments shall serve to reduce the principal amount.

Outsourcing

8.1 The Contractor is at all times entitled to outsource the execution of the work assigned to it, in whole or in part, to third parties.

Applicable Law and Choice of Forum

9.1 The Agreement, these General Terms and Conditions, and other obligations arising from or related to the Agreement and/or these General Terms and Conditions are exclusively governed by Dutch law.

9.2 For the settlement of disputes referred to in this article, the parties waive their right to submit these to the ordinary court, except in the case of taking protective measures and the provisions to maintain them, and except for the competence described in the fourth paragraph.

9.3 All disputes – including those considered as such by only one of the parties – that may arise between the Client and the Contractor as a result of this Agreement or of the agreements resulting therefrom, shall be settled by arbitration in accordance with the rules described in the statutes of the Council of Arbitration for the Construction Industry in the Netherlands (Raad van Arbitrage voor de Bouwbedrijven in Nederland), as they read three months before the formation of the Agreement.

9.4 In deviation from article 9.3, disputes that fall within the competence of the subdistrict court (kantonrechter) may, at the choice of the most diligent party, be submitted to the competent subdistrict court for settlement.

II DELIVERY OF GOODS

Delivery

10.1 Delivery takes place – Ex Works Contractor – in accordance with the latest version of the Incoterms.

10.2 If delivery at the site has been agreed, the goods will be delivered on a means of transport at the place stated in the Agreement. If no such place has been agreed, delivery will take place at a depot on the construction site, or at least as close to it as possible. The Contractor does not need to transport the goods further than where the vehicle can reach a proper unloading point over properly prepared terrain. The Client is obliged to receive the goods there and unload them immediately. If the Client fails to do so, the resulting costs will be for its account. The Client shall ensure that there is sufficient space for delivery and unloading.

III CONTRACTING OF WORK

Obligations of the Client

11.1 The Client shall ensure that the Contractor can (timely) have at its disposal:

a) good, paved access roads to the work such that our materials and equipment can be brought to the entrance of the building in full loads at all times; if this is not the case, the Client must compensate the Contractor for extra costs, including in particular extra manpower for the supply of equipment;

b) on every floor, there must be a facade opening large enough to transport the necessary materials inside;

c) sufficient parking space must be available for, among others, the technicians and the supervisor; if this is not possible, the Contractor will pass on these costs;

d) lockable, illuminated, dry, clean storage space of sufficient size for the storage of materials, machines, etc.;

e) storage space protected against frost and heat for the storage of flammable or fire-hazardous and frost-sensitive materials;

f) the receipt of materials intended for the Contractor’s work and treating them in accordance with the instructions on the accompanying documents and/or instructions for storage placed on the packaging;

g) water and electricity, both for light and power current with sufficient voltage and with enough easily connectable sockets so that the Contractor can have these at its disposal within a radius of 25 meters;

h) canteen, washing facilities, and toilets or free access thereto for the Contractor’s personnel;

i) construction lifts, scaffolding, and construction materials that are properly usable according to the regulations; and

j) all measures to prevent frost delays, which are prescribed by the Risk Fund Foundation for the Plastering, Finishing, Terrazzo/Flooring Industry.

11.2 If work must be carried out, the Client is obliged to ensure that the building is closed off with glass or other translucent material if weather conditions make this necessary in the opinion of the Contractor. The building must be wind and watertight.

11.3 The Client will ensure that vulnerable parts in the vicinity of the work to be installed by the Contractor are protected.

11.4 The Client shall ensure that persons present in the vicinity at the time of the execution of the work have been informed in advance of the dust, stench, odor, and noise nuisance associated with the work and that anyone other than the Contractor’s personnel is denied access to the rooms in which the Contractor carries out its work, as well as during the time thereafter that the Contractor deems necessary.

11.5 The Client ensures order and safety at the work. The Contractor must receive a clean and empty work floor from the Client. The quotation does not take into account window cleaning or a final cleaning. The Client also ensures the good condition of the materials and equipment provided by it.

11.6 The Contractor mounts its walls by means of screws and nails into the architectural ceilings, walls, and floors. If there are installations in the ceilings, walls, or floors, the Client must report this in writing in advance (such as underfloor heating, cooling ceilings, water pipes, etc.). For mounting in the ceilings, the Client must ensure sufficient fastening options, unless the Contractor does not provide the ceilings or the fastening options itself.

11.7 All costs for the points mentioned in articles 11.1 to 11.6 are for the account of the Client.

11.8 The Client must ensure that work and/or deliveries to be carried out by others that do not belong to the Contractor’s work are carried out in such a way and so timely that the execution of the work is not delayed.

Obligations of the Contractor

12.1 The Contractor is obliged to carry out the work well and properly, according to the provisions of the Agreement and according to the drawings and calculations approved by the Client. The Contractor must carry out the work in such a way that damage to person, property, and/or the environment is limited as much as possible. The Contractor is obliged to follow the orders and instructions given by the Client.

12.2 The execution of the work must be such that the completion of the work is done within the agreed term.

12.3 The work and the execution thereof are the responsibility of the Contractor from the time of commencement up to and including the day on which the work is considered delivered.

12.4 If the nature of the work gives cause to do so, the Contractor shall inform itself of the location of cables and pipes before the start of the work. The Client is held to provide the Contractor with its full cooperation.

12.5 The Contractor is deemed to be familiar with the legal regulations and government orders relevant to the execution of the work, insofar as these apply on the day of the quotation. The consequences associated with compliance with these regulations and orders are for its account.

Extras and Reductions

13.1 Settlement of extras and reductions takes place:

in the event of changes to the Agreement or the conditions of execution;
in the event of deviations from the amounts of the provisional sums;
in the event of deviations from the settleable quantities;
in the event of deviations from non-settleable (estimated) quantities, if there is an exceedance of more than 10% of the non-settleable quantity.

13.2 If the final settlement of the work shows that the total amount of the reductions exceeds the total amount of the extras, the Contractor is entitled to an amount equal to 10% of the difference between those totals.

13.3 Changes to the Agreement or the conditions of execution shall be agreed in writing. The lack of a written order does not affect the Contractor’s claims for settlement of extras and reductions. In the absence of a written order, the administration kept by the Contractor regarding the extras carried out is binding.

13.4 For expenditures to be charged to provisional sums, the prices charged to the Contractor or the costs incurred by it shall be used, to be increased by a contractor’s fee of 10%.

13.5 If settleable quantities are included in the Agreement, and these quantities turn out to be too high or too low to complete the work, settlement will take place of the extra or reduced costs resulting from that deviation.

Execution and Delivery

14.1 The Contractor’s work is carried out within the Contractor’s normal working hours.

14.2 The Client must ensure that the Contractor can start its work immediately upon arrival at the work and can carry it out during normal working hours. Work outside normal working hours must be tolerated and paid for by the Client at extra cost if the Contractor deems this necessary;

14.3 If the Contractor delivers glass, that glass complies with the building decree in accordance with NEN 3569:2001. As such, the glass delivered by the Contractor is laminated or tempered glass. Unless explicitly stated otherwise, the Contractor assumes that the provided design/layout has been tested against the rules of the building decree.

14.4 Minor color and structural differences in the work are permissible.

14.5 If the term 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 general or locally recognized rest or public holiday, vacation day, or other non-individual day off prescribed by the government or by or pursuant to a collective labor agreement. Working days, or half working days, are considered unworkable when at least four (4) hours cannot be worked by the majority of the workers or machines.

14.6 If the delivery of the work should take place on a day that is not a working day as described in paragraph 5, the next working day shall count as the agreed day of delivery.

14.7 The Contractor is entitled to an extension of the term within which the work will be delivered if, due to force majeure, circumstances for the account of the Client, or due to a change in the Agreement or in the conditions of execution, the Contractor cannot be expected to deliver the work within the agreed term. This also applies in the case of the late availability of the documents, data, calculations, permits, and the like necessary for the execution of the work. Force majeure is in any case understood to mean: war, total or partial mobilization, riot, disturbances, blockade, traffic obstructions, general or partial strike, lockout, forced standstill, flood and/or abnormal water levels, epidemic, illness of personnel, direct or indirect stagnation in the company, or if due to vandalism, occupation (also by squatters), nuclear reactions, environmental disaster, environmental pollution at the site of the work to be carried out with consequences threatening the health of persons, actions of social groups, import or export ban, snow and/or ice obstruction or by any other cause beyond our control, the necessary raw materials, auxiliary materials or components which we purchase from third parties cannot reach us or cannot reach us in time, and/or our employees cannot reach the construction project or stay there, we have the right to suspend the delivery of materials and/or the execution of the work as long as this stagnation or obstruction continues.

14.8 If the commencement or progress of the work is delayed by factors for which the Client is responsible, the resulting damage and costs for the Contractor must be compensated by the Client.

14.9 The Contractor invites the Client to proceed with the delivery of the work within a reasonable period before the day on which the work will be completed in the opinion of the Contractor. The delivery takes place as soon as possible but no later than ten (10) calendar days after the aforementioned day. The delivery takes place by the Client in the presence of the Contractor and serves to determine whether the Contractor has fulfilled its obligations under the Agreement.

14.10 After the work has been delivered, the Client shall inform the Contractor in writing within ten (10) calendar days whether or not the work has been approved, in the former case stating any minor defects, in the latter case stating the defects that are the reason for withholding approval.

14.11 If no written notification as to whether or not the work has been approved is sent to the Contractor within ten (10) calendar days after delivery, the work is deemed to have been approved on the eighth calendar day after delivery.

14.12 If the delivery does not take place within ten (10) calendar days after the day referred to in article 14.7, the Contractor will again request in writing to record the work within ten (10) calendar days. If the Client does not comply with this request, the work is deemed to have been approved on the eighth calendar day after the day referred to in article 14.7.

14.13 The work is deemed to have been approved if and insofar as it is taken into use. The day of taking the work or a part thereof into use counts as the day of approval of the work or of the relevant part.

14.14 Minor defects, which can be conveniently repaired during the maintenance period, shall not be a reason for withholding approval, provided they do not prevent any taking into use.

14.15 The Contractor is obliged to repair the minor defects referred to in article 14.10 as soon as possible. The maintenance period is thirty (30) calendar days and starts immediately after the day on which the work is considered delivered. The Contractor is obliged to repair defects that occur during the maintenance period as soon as possible, with the exception, however, of those for which the Client bears responsibility under article 5.1, or for which the Client is liable under article 5.2.

Suspension, Termination of the Work in Unfinished State, and Cancellation

15.1 The Client is authorized to suspend the execution of the work in whole or in part. Provisions that the Contractor must make as a result of the suspension will be settled as extras. Damage suffered by the Contractor as a result of the suspension must be compensated to it.

15.2 The Client is at all times authorized to cancel the Agreement in whole or in part. In that case, the Contractor is entitled to the contract price, increased by the costs it had to incur as a result of the non-completion and reduced by the costs saved by the termination, increased by 10% of the difference between the resulting amount and the contract price. The Contractor shall send the Client a specified final settlement of what the Client owes as a result of the cancellation.

15.3 The Contractor has the right to dissolve the assignment with immediate effect without judicial intervention and/or to claim all its receivables from the Client in the event of bankruptcy or suspension of payments or if the Client does not provide proper security for the fulfillment of its obligations at the first request of the Contractor. In such a case, a final settlement takes place in accordance with the provisions of article 15.2.

15.4 If damage to the work occurs during the suspension, this is not for the account of the Contractor, provided it has previously pointed out this consequence associated with the suspension to the Client in writing.

15.5 If the suspension lasts longer than fourteen (14) days, the Contractor may furthermore demand that a proportionate payment be made to it for the executed part of the work.

15.6 If the suspension of the work lasts longer than one (1) month, the Contractor is authorized to terminate the work in an unfinished state. In that case, settlement must be made in accordance with article 15.2.

Modified Execution

16.1 If during the execution of the work it appears that the work or a part thereof can only be executed in a modified way due to unforeseen circumstances, the party that first becomes aware of this circumstance shall consult with the other party. The Contractor shall point out the financial consequences of the modified execution to the Client.

16.2 An agreed modified execution will be settled as extras and reductions.

Impossibility of Execution

17.1 If the execution of the work becomes impossible because the object on which or to which the work must be executed is destroyed or lost without this being attributable to the Contractor, the Contractor is entitled to an amount calculated in accordance with article 15.2.