GENERAL TERMS AND CONDITIONS 360RETAIL
Article 1 Definitions
In these general terms and conditions, the following shall be defined as:
- 360Retail / Client: the private company with limited liability: 'Jabaay Ontwikkeling B.V.', also trading under the name 360Retail, having its registered office in Puttershoek, listed in the trade register of the Chamber of Commerce under number 23073171 as well as all companies affiliated with Jabaay Ontwikkeling B.V.;
- Contractor: the natural or legal person who commissions 360Retail to carry out work and/or perform work and/or provide services;
- Agreement: the Agreement entered into between 360Retail and the Contractor in respect of the supply of goods and/or services and/or the performance of work, any addition to and/or changes to such, as well as all (legal) acts in preparation (including the request for 360Retail and the Contractor's quotation) and for the performance thereof;
- Assignment: the agreed work to be performed and/or services to be provided, including the delivery of goods;
- Price: the amount agreed upon between Jabaay Ontwikkeling and the Contractor for which the Contractor is to execute the Assignment;
Article 2 Applicability of these general terms and conditions
- These general terms and conditions apply to all Agreements between 360Retail and the Contractor, whereby the applicability of any general terms and conditions used by the Contractor is expressly excluded.
- These general terms and conditions apply to Agreements with any Contractor, regardless of whether the work to be performed is or will be performed in whole or in part in a country other than the Netherlands.
- The nullity and/or voidability of one or more provisions as included in these general terms and conditions shall not affect the validity of the other provisions in these general terms and conditions that are not null and void or voidable.
Article 3 Realisation of agreements
The Agreement is concluded when 360Retail has confirmed the content of the Agreement / Assignment in writing to the Contractor or when 360Retail tacitly executes the Agreement / Assignment.
Article 4 Amendments and additions
- Deviations from these general terms and conditions shall only be valid if laid down in writing in the Agreement.
- Amendments and additions to the Agreement/Assignment shall only come into effect and shall only be binding by written confirmation thereof by 360Retail.
- At the request of 360Retail, the Contractor shall carry out all amendments to the Assignment requested by 360Retail to the extent reasonably possible.
- If, in the opinion of the Contractor, an amendment requested by 360Retail affects the agreed Price and/or delivery time, the Contractor is obliged, before implementing the amendment, to inform 360Retail of this in writing without delay, but at the latest within 5 working days of the aforementioned request by 360Retail, failing which the Contractor shall not be entitled to increase the Price and/or change the delivery time.
- If the desired change in the Assignment results in a higher Price and/or a longer delivery time, 360Retail has the right to demand an unchanged or amended execution of the Assignment that is acceptable to 360Retail or to terminate the Agreement in accordance with article 14.
Article 5 The Contractor's obligations/responsibilities
- Dimensions, drawings, technical descriptions, designs and calculations supplied by 360Retail must be checked by the Contractor before commencement of the work. In the event of deviations and/or inaccuracies in these supplied items, the Contractor must immediately notify 360Retail of this in writing.
- For all materials to be used, the Contractor must submit a sample to 360Retail
for approval at least one week prior to commencement of the work.
- The Contractor guarantees to execute the Assignment to the best of its
knowledge and ability, in accordance with the requirements of good workmanship,
in accordance with what may be expected within the scope of the task assigned to the Contractor.
- In executing the Agreement, the Contractor is obliged to comply with all safety and environmental regulations applicable at the time of execution of the Assignment, including but not limited to the regulations of the Dutch Building Decree, as well as the regulations of the suppliers of the (building) materials to be used. The Contractor is liable to 360Retail for all damages (direct, indirect and consequential) resulting from a breach of these regulations.
- The Contractor must always inform 360Retail in a timely manner regarding circumstances and developments of which 360Retail must be aware in view of the proper execution of the Agreement.
- The Contractor must keep all items related to the execution of the Assignment clean and tidy throughout the entire construction period and must protect vulnerable materials and parts. If the Contractor fails in this case, 360Retail shall be entitled to engage a third party for this purpose at the expense of the Contractor or to have repairs carried out at the expense of the Contractor. The Contractor undertakes to reimburse 360Retail for the associated costs. 360Retail is entitled to offset these costs against outstanding invoices/claims from the Contractor.
- All images, signs and other promotional material provided by 360Retail must remain clearly visible and undamaged at all times.
- The Contractor is prohibited - without the prior written consent of 360Retail - from placing images, signs and/or other promotional material in and/or around the place where the Assignment is being or is to be carried out. The Contractor must also ensure that any (sub)contractors or third parties do not place images, signs and/or other promotional material in the vicinity.
- Nuisance to employees, residents, neighbours and the public must be kept to a minimum. If the Contractor knows or suspects that serious nuisance will be involved in the execution of (part of) the Assignment and that such nuisance cannot be prevented, Contractor must immediately notify 360Retail in writing in advance, so 360Retail can take appropriate measures.
- The Contractor is responsible, at its own expense and risk, for vertical and horizontal transport of the (construction) materials to be processed and placed and for the immediate removal and disposal of all (construction) waste produced, including packaging materials, pallets, etc. The Contractor indemnifies 360Retail against all possible claims by third parties arising from the transport of (construction) materials or the removal and disposal of (construction) waste.
- 360Retail has the right at all times to inspect, examine and test the performance (delivered up to that point) and to have all this carried out by independent experts. The Contractor shall at all times grant 360Retail access to the place where the Assignment is being or is to be carried out.
- If 360Retail provides goods/tools on loan to the Contractor, the Contractor shall:
- without the written consent of 360Retail, not use these goods/tools for purposes other than necessary for the execution of the Agreement;
- without the written consent of 360Retail, not allow these goods/tools to be used by third parties or assert rights to them against third parties;
- ensure insurance of these goods/tools against loss, damage and the consequences of incorrect use;
- return these goods/tools to 360Retail - clean and in the condition in which they were received - within two working days after completion or termination of the Assignment.
The Contractor is obliged to keep these goods/tools clearly marked until the time of return delivery and is liable for any damage resulting from loss of or damage to these goods/tools and/or the destruction thereof.
Article 6 Insurances
- The Contractor shall, at his/her expense, provide all insurances necessary for the performance of the Agreement (such as CAR/liability insurance) and shall ensure sufficient coverage.
- The Contractor is obliged to submit to 360Retail a copy of the policy documents of valid and sufficient (additional) insurance policies as well as the payment of the premium. If the Contractor is unable to provide these proofs, 360Retail shall be entitled to take out adequate insurance itself at the expense of the Contractor.
- The insurances must be valid for at least the entire construction period including the delivery period of twelve months.
- The Contractor is obliged to notify 360Retail immediately of any event causing damage
- At the first written request of 360Retail, the Contractor is obliged to provide additional cover at the expense of the Contractor.
- The Price shall be deemed to include all costs required for the quotation and the performance of the Agreement, including all travel and accommodation expenses, driving and parking costs.
- Changes in costs and/or cost charging, including changes in wages, materials, taxes and excise duties and import and export duties, will be at the expense and risk of the Contractor.
- The Price is exclusive of turnover tax (Dutch VAT), but inclusive of all other taxes, excise duties and levies imposed.
Article 8 Additional and less work
- Any deviation from the Assignment (less and additional work or cost-increasing circumstances) must be reported in writing by the Contractor to 360Retail immediately upon discovery, stating the price for the additional work and/or additional costs.
- Pursuant to the statement referred in paragraph 1. Contractor is not entitled to charge 360Retail for additional work and/or additional costs, unless expressly agreed otherwise in whriting, including the written approval of 360Retail.
- The Contractor shall not accept any direct orders from customers/clients of 360Retail and will submit any requests for additional or less work to 360Retail.
Article 9 Payment
- Payment by 360Retail takes place within 30 days after receipt and (provisional) agreement by 360Retail of the invoice of the Contractor.
- The payment term does not commence until the Contractor has provided 360Retail with all work orders, reports, (warranty) certificates, manuals and maintenance instructions for installations, such as a burglar alarm, air conditioning/air treatment system, central heating system, electrical installation, underfloor heating, taps, etc.) relating to the Assignment or the relevant invoice.
- 360Retail is not bound to any complaint period applied by the Contractor, nor to any consequences attached to such a complaint period by the Contractor. 360Retail shall make its complaints known to the Contractor within a reasonable time after discovery of a defect in the (invoiced) part of the Assignment or a defect/incorrectness in the invoice. The payment term shall, in any case, be suspended until the complaints, declared by 360Retail, have been resolved to the satisfaction of 360Retail.
- 360Retail has the right to pay 5% of the Price no sooner than 3 months after completion of the Assignment. If outstanding (completion) items or defects subsequently discovered are not remedied within this period, 360Retail shall be entitled to extend this period by a further reasonable period of time, or 360Retail shall be entitled to offset the said percentage against any (repair) costs or other damages incurred by 360Retail as a result of defects, without prejudice to 360Retail's right to full/additional compensation.
- In the event 360Retail makes an advance payment or any payment to the Contractor, with which the Contractor purchases materials and/or products, at the moment of
payment by 360Retail to the Contractor, or if the materials and/or products are delivered to the Contractor at a later date at the time of delivery to the Contractor, all materials and/or products purchased as a result of the receipt of the advance payment and/or the payment are the property of 360Retail. The Agreement serves as deed of delivery.
- The Contractor is not entitled to any suspension or set off and waives its right of retention (pursuant to Article 3:290 of the Dutch Civil Code et seq.) vis-à-vis 360Retail and/or the end user. The Contractor is obliged to impose this provision on all third parties engaged by him/her, failing which the Contractor forfeits in favour of 360Retail a penalty of €5,000 for each breach and €1,000 for each day that the breach continues, without prejudice to 360Retail's right to claim compliance and/or (full or additional) damages in deviation of Article 6:92, paragraph 2, of the Dutch Civil Code.
Article 10 Delivery, delivery time
- The Assignment is only deemed to have been completed when 360Retail has signed for delivery. Correct delivery only applies if 360Retail has unconditionally signed for delivery and no (significant) defects are identified.
- A delivery period for the Contractor as agreed between the parties serves as a binding deadline, unless otherwise stipulated in the Agreement. If the delivery period is exceeded, the Contractor will be in default by operation of law.
- The Contractor shall be obliged to inform 360Retail in good time of the expected time of delivery and shall invite 360Retail in good time in writing for the delivery.
- The Contractor is obliged to immediately and fully inform 360Retail of any delay in the execution of the Agreement. Such notification does not release the Contractor from its obligation to deliver within the delivery period.
- In the event that the Contractor fails to deliver correctly within the delivery period, the Contractor shall owe 360Retail an immediately payable penalty of 1% of the total Assignment Price for each day that delivery is not made, without prejudice to 360Retail's right to claim full/additional compensation, contrary to Article 6:92, paragraph 2, of the Dutch Civil Code.
Article 11 Liability 360Retail
- 360Retail shall never be liable towards the Contractor, its employees and/or third parties engaged by the Contractor.
- To the extent 360Retail can be held liable for any damages, this only relates to the direct damages that are the direct consequence of a (coherent series of) attributable shortcoming(s) on the part of 360Retail. A coherent series of culpable shortcomings counts as one culpable shortcoming.
- The liability for (direct) damage is limited to a maximum of the amount paid out by the liability insurer in the case concerned. If, for whatever reason, the liability insurer does not pay out (in full), 360Retail's liability shall be limited to the amount of the Price charged for the execution of the Assignment.
- 360Retail shall never be liable for indirect damages, including consequential damages, loss of profit, missed savings, damage due to business interruption, damage caused by or during the execution of the Assignment to items to which
are being worked on or on matters located in the vicinity of the place of work
and damage caused by intent or deliberate recklessness on the part of auxiliary persons or non-managing subordinates of 360Retail.
- The provisions of paragraphs 1 to 4 of this article apply to both the contractual and non-contractual liability of 360Retail towards the Contractor, its employees and/or third parties engaged by it.
Article 12 Guarantee, defects and liability Contractor
- The Contractor guarantees:
- that the performance to be delivered/provided by it is complete and suitable for the purpose for which it is intended, that it is of good quality, free from design, execution and/or material errors and that new materials are used for the provision of services and/or the execution of work and and skilled personnel are engaged;
- that the performance to be delivered/provided by it is fully in accordance with the requirements contained in the Agreement and other documents provided by or on behalf of 360Retail and fully complies with the Agreement;
- that the performance to be delivered/provided by it meets at least the statutory requirements and good workmanship applicable in the Netherlands and does not entail any risk to the health and/or safety of persons or property.
- Any defective deliveries must be remedied by and at the expense of the Contractor within 14 days.
- Defects found within a period of twelve months after delivery (guarantee period) - with the exception of those caused by normal wear and tear - must be repaired by the Contractor at its own expense and risk within 14 days following the request of 360Retail or the end user to do so. Repair is also understood to include the replacement of parts/delivered goods.
- The Contractor is obliged to compensate 360Retail in full for all costs and damage (both direct and indirect as well as consequential) resulting from defects or unsuitability of a performance delivered by the Contractor, including the costs of inspections, tests and trials.
- If the Client fails to repair/resolve defects within 14 days following 360Retail's or the end-users' request to do so, 360Retail shall be entitled to repair/resolve the defects itself or have them repaired/resolved. The costs involved in this shall be borne entirely by the Contractor.
- In the event of a defect, 360Retail shall be entitled to suspend payment to the Contractor and/or to offset this against any damage suffered by 360Retail, including costs of repair.
Article 13 Sequential Liability Act (Wet ketenaansprakelijkheid), Foreign Nationals Employment Act (Wet Arbeid Vreemdelingen, WAV), Dutch Minimum Wage Act (Wet minimumloon, WML), the Act on Combating Sham Arrangements (Wet aanpak schijnconstructies, WAS) and the General Data Protection Regulation (GDPR).
- The Contractor is liable for the contractual and/or
statutory wages, (pension) contributions, payroll taxes and social security charges. The Contractor guarantees that all contractual and/or statutory wages and payroll taxes owed by the Contractor will be paid for the employees employed by it and/or third parties engaged by it for the execution of the Assignment.
- The Contractor is obliged to comply with the Foreign Nationals Employment Act (WAV), the Dutch Minimum Wage and Minimum Holiday Allowance Act (WML) and the General Data Protection Regulation (GDPR).
- The Contractor is obliged to impose the obligations set out in paragraphs 1 and 2
of this article on its subcontractors and is responsible for the fulfilment of this
obligation by its subcontractors.
- The Contractor is obliged to submit a complete and adequate personnel administration to 360Retail at 360Retail's first request, in the light of the
Sequential Liability Act, WAV, the WML and the Act on Combating Sham Arrangements (WAS).
- At the first request of 360Retail, the Contractor is obliged to provide insight into its accounts within the framework of the Sequential Liability Act, the WML and the WAS.
- The Contractor guarantees that all third parties engaged by it comply with the requirements and obligations set out in the WAV, the WML, the WAS and the GDPR.
- The Contractor will fully indemnify 360Retail with respect to all possible claims/liabilities from third parties and from the Inspectorate of the Ministry of Social Affairs and Employment, the Tax and Customs Administration, the Personal Data Authority, the licensing body and/or the Public Prosecution Service or a judicial authority, such as, but not limited to, any fines, periodic penalty payments, damages and/or claims under administrative or criminal laws and regulations, including, but not limited to, potentially unlawfully obtained benefits and/or damages on the grounds of, inter alia, but not limited to, the WAV, the WML, the WAS and/or the Economic Offences Act, and/or the Sequential Liability Act, and/or the GDPR. If the Tax and Customs Administration holds the Contractor liable for unpaid wage tax and/or national insurance contributions of third parties engaged by the Contractor as referred to in Article 12, paragraph 1, 360Retail is entitled to deduct the amount for which it has been held liable vis-à-vis the tax authorities from what 360Retail would still have to pay to the Contractor.
- Any costs incurred by 360Retail as a result of the aforementioned claims/liabilities, including but not limited to the costs of legal assistance, must be paid in full by the Contractor to 360Retail.
Article 14 Termination of the Agreement
- 360Retail has, without prejudice to the right to full compensation (both direct, indirect and consequential damages), the right at all times, without any liability and without judicial intervention or notice of default, to terminate or dissolve the agreement in whole or in part with immediate effect, if:
- the Contractor fails to fulfil its obligations under the Agreement, or fails to do so on time or properly;
- the Contractor (partially) discontinues its business (including the inability to meet its current obligations);
- the Contractor has been declared insolvent or a winding-up petition has been filed, a suspension of payments has been granted to the Contractor, whether or not on a provisional basis, or an application has been submitted for such a suspension of payments, the statutory debt rescheduling (WSNP) has been allowed for the Contractor, or such has been requested, the Contractor loses the power of disposition of its assets by attachment, guardianship order or otherwise, irrespective of whether the relevant court ruling has become irrevocable, or the Contractor has offered creditors an arrangement with creditors outside the context of the insolvency;
- ownership of or control over the Contractor is transferred;
- the Contractor has ceased to exist or has been dissolved, altered to a different legal form, legally merged or legally split, or, if the Contractor is a natural person, in the event of death;
- on one or more shares of the Contractor in the capital of a
company is subject to any limited right or attachment and that right or attachment is not lifted within 30 (thirty) days;
- following the conclusion of the Agreement, 360Retail became aware of (other) circumstances that give a particular reason to fear the Contractor will not meet its obligations;
- In such a case, the Contractor is obliged (except in the event that the Contractor is a natural person and his/her death is involved) to immediately notify 360Retail of the aforementioned circumstances.
- 360Retail expressly reserves the right, after written warning, to terminate or dissolve this Agreement with immediate effect in the event that the Contractor or subcontractor(s) demonstrably work contrary to the Agreement or these general terms and conditions. As of the date of termination/dissolution, the Contractor will no longer be entitled to any reimbursement of costs or wages. 360Retail is at that time entitled to engage another contractor or subcontractor(s) (at the expense of the Contractor).
- All claims that 360Retail may have or acquire as a result of the termination of the Agreement, including any compensation claims, shall be immediately due and payable in full and set off against any claim that the Contractor may have or acquire on 360Retail.
Article 15 Intellectual property rights and confidentiality
- The Contractor is obliged to maintain the confidentiality of all drawings, specifications, business information and know-how originating from 360Retail, which have been brought to its knowledge by or during the Assignment.
- Without the prior consent of 360Retail, the Contractor is prohibited from showing, copying, reproducing and/or using these drawings, technical descriptions, designs and calculations to third parties for its own benefit (outside the execution of the Agreement) or allowing them to be used by third parties.
- In the event of breach of the provisions of paragraph 1 and/or paragraph 2 of this article, the Contractor shall forfeit to 360Retail an immediately due and payable penalty of €5,000, which is not subject to mitigation, without prejudice to 360Retail's right to full/additional compensation.
- If no order is issued by 360Retail, the documents submitted by 360Retail must be returned by the Contractor to 360Retail within five calendar days following 360Retail's request by 360Retail.
- All (intellectual property rights to) drawings, technical descriptions, designs and calculations provided or submitted by 360Retail to the Contractor are/remain the property of 360Retail.
- All intellectual property rights to works, trade/brand names, logos,
domain names, inventions and other matters, which are used and developed for the purposes of and/or during the execution of the Agreement, belong to 360Retail and 360Retail is the only party allowed to have these rights registered. The Contractor, including its employees, subcontractors and all persons affiliated with it, is/are not entitled to use, copy and/or reproduce these items other than necessary for the proper execution of the Assignment, unless 360Retail gives its prior written consent.
- Even if 360Retail gives written permission for the use of its intellectual property rights, or if the Contractor uses the right and/or rights in order to properly execute the Assignment, 360Retail always retains the right to oppose (including, but not limited to) disclosure without clear reference to (the name of) 360Retail, disclosure with reference to a name of a third party, modification and/or impairment of the Assignment, in whatever form, to which objection the Contractor must respond, in the sense that it must then immediately cease use.
- 360Retail is entitled to use trade/brand names, logos, domain names and/or works belonging to the Contractor for advertising and/or marketing purposes in the context of
implementation of the Agreement.
- Unless the parties agree otherwise in writing, the intellectual property and
industrial property of all work/ideas to be created or developed under the Agreement
are the property of 360Retail.
Article 16 Third parties
- The Contractor is only entitled to have the Agreement (partly) performed by third parties if 360Retail has given its prior written consent thereto. All parties engaged by the Contractor for the execution of the Agreement shall fall undividedly under the responsibility of the Contractor. The Contractor indemnifies 360Retail against all possible claims from or relating to these third parties.
- The Contractor undertakes to consistently impose all obligations arising
from the Agreement and these general terms and conditions on its
personnel and any other third parties engaged by the Contractor.
- The Contractor ensures and is responsible for the management and facilitation of
all subcontractors, which in accordance with the Agreement, fall under its responsibility.
- The Contractor undertakes to ensure that any third party engaged by the Contractor
shall act as a direct written guarantor for 360Retail in respect of the proper completion of any work to be performed by this third party. This third party must also declare that the work to be carried out will take place in accordance with the requirements and within the periods stated in the Agreement and these general terms and conditions. The Contractor shall ensure that 360Retail will be in a position to hold the third party directly liable in the event this third party fails to comply with the Agreement, or there are defects in the materials used and/or installed by the third party and/or a claim must be made for warranties. The Contractor guarantees that only third parties/employees who have Dutch nationality or a valid work permit will be engaged and/or employed. In the event that the Contractor fails to comply with the obligations set out in this paragraph, the Contractor shall forfeit in favour of 360Retail an immediately payable penalty of €5,000 for each violation and €500 for each day that the violation continues, which is not subject to mitigation and without prejudice to the right of 360Retail to claim compliance and/or compensation in deviation of Article 6:92, Paragraph 2, of the Dutch Civil Code.
Article 17 Indemnification
- The Contractor fully indemnifies 360Retail against any claims by third parties (including, but not limited to, employees of the Contractor, subcontractors engaged by the Contractor and local residents, neighbours and passers-by) who suffer damage in connection with and/or during the performance of the Agreement.
- Should 360Retail be held liable by third parties in this respect,
the Contractor is obliged to assist 360Retail, both out of court and in court, and to immediately do everything that can be expected of the Contractor in that case. Should the Contractor fail to take adequate measures, 360Retail shall be entitled to do so itself without notice of default. All costs and damages incurred by the Contractor and third parties, as a result, shall be fully at the expense and risk of the Contractor.
Article 18 Non-transferability of claim
The claims which the Contractor has or may acquire on 360Retail pursuant to the performance of the Agreement are non-transferable, not subject to assignment and not subject to pledge. This provision has effect under property law, as referred to in Article 3:83, Paragraph 2, of the Dutch Civil Code.
- During the term of the agreement and for a period of 2 years after delivery, the Contractor is prohibited from having commercial contact in any way whatsoever with clients, customers, suppliers, employees and other relations of 360Retail, regardless of their place of residence, either personally and directly, or indirectly and with the help of others, for the purpose of offering (or having offered) goods and/or products and/or services that by their nature correspond to the services and/or products and/or goods offered and/or delivered by 360Retail. The Contractor shall also refrain from actions that (may) cause the relations of 360Retail to terminate their legal relationship with 360Retail or attach other conditions to it.
- If the Contractor fails to comply with the obligations set out in the present paragraph, the Contractor shall forfeit in favour of 360Retail an immediately payable penalty of €5,000 per breach and €500 for each day that the breach continues, which is not subject to mitigation and without prejudice to 360Retail's right to claim compliance and/or compensation in deviation of Article 6:92, Paragraph 2, of the Dutch Civil Code.
- The Agreement is exclusively governed by Dutch law
- All disputes shall, to the exclusion of any other court, be settled by the competent
court judge of the Rotterdam District Court.
- In addition to the foregoing, 360Retail is authorised to sue the Contractor before the competent court of domicile or place of business of the Contractor.
- Insofar as these general terms and conditions do not stipulate otherwise, rights of action and other powers of the Contractor against 360Retail lapse, for whatever reason, in any case after one year from the moment the Contractor became aware or could reasonably have become aware of the existence of these rights and powers.