General Terms and Conditions

1. Definitions

1.1. In these general terms and conditions the following terms have the following meaning, unless expressly stated otherwise, or this appears to be otherwise from the context:
a. GBO: the user of these general terms and conditions, being:
1. GBO Design – Engineering BV: established at Wethouder den Oudenstraat 6, in Helmond, registered in the commercial register of the Chamber of Commerce under Ch. of Comm. number 17156010, also acting under the name GBO Innovation makers; and
2. GBO Projects BV: established at Wethouder den Oudenstraat 6, in Helmond, registered in the commercial register of the Chamber of Commerce under Ch. of Comm. number 17224850, also acting under the name GBO Innovation makers;
b. Client: the company that enters into an agreement with GBO, or as the case may be that has received an offer/tender from GBO, or that GBO has any legal relationship with, or that GBO executes any legal act for;
c. agreement: the agreement between GBO and the Client;
d. items: the items and services delivered by GBO to the Client;
e. General Terms and Conditions: these general terms and conditions of GBO.

2. Agreement, offer and confirmation

2.1 These General Terms and Conditions apply to every offer, tender and the coming into effect, the contents and the performance of all agreements concluded between the Client and GBO. These General Terms and Conditions also apply to agreements with GBO, for the performance of which GBO must involve third parties. If these General Terms and Conditions have been applicable once to a legal relationship between GBO and the Client, the Client will be deemed to have agreed in advance to the applicability of these General Terms and Conditions to agreements subsequently concluded.
2.2 The applicability of purchase or other terms and conditions of the Client is expressly rejected and excluded.
2.3 All offers, tenders and delivery periods are without obligation.
2.4 An offer or tender will lapse if the item or service, which the offer or the tender relates to, has become unavailable in the interim.
2.5 Quotations can be subject to changes due to unforeseen changes in the work.
2.6 The prices are excluding VAT and other duties imposed by authorities and are in Euros unless otherwise agreed in writing or by email.
2.7 The rates and offers referred to do not automatically apply to future agreements.
2.8 The Client guarantees the accuracy and completeness of the data provided by or on behalf of the Client to GBO on which GBO bases the offer.
2.9 A combined quotation will not oblige GBO to the execution of a part of the agreement at a corresponding part of the price stated.
2.10 Agreements will be confirmed in writing by the Client. If the Client omits to do this, but nevertheless agrees to GBO commencing with the performance of the agreement, the contents of the offer will apply as agreed and these General Terms and Conditions will apply.
2.11 Further verbal arrangements and stipulations will only bind GBO after these have been confirmed by GBO in writing or by email.
2.12 GBO cannot be obliged to its offer or tender if the Client could reasonably understand that the offer or tender, or a part thereof, contains an obvious error or a clerical error.
2.13 If the acceptance (whether or not on secondary points) derogates from the supply included in the offer or tender GBO will not be bound thereto. In that case the agreement will not come into effect in accordance with this derogating acceptance, unless GBO states otherwise.
2.14 Derogations from these General Terms and Conditions or from the agreement can only be agreed in writing between the Client and GBO and will only be binding after confirmation in writing by GBO.

3. Performance of the agreement

3.1 GBO will perform the agreement to the best of its knowledge and ability and in accordance with high standards.
3.2 GBO will be entitled to have specific work executed by third parties, without informing the Client of this in advance.
3.3 The following do not form part of the assignment of GBO unless agreed otherwise in writing:
a. the application for permits, inspections and the assessment whether instructions of the Client will fulfil the statutory or quality standards;
b. conducting research into the existence of (intellectual property) rights, including but not limited to patent rights, trademark rights, drawing or design rights, copyright or portrait rights of third parties;
c. conducting research into the option of the possible forms of protection for the Client referred to under b.
3.4 The Client will be obliged to do all that which is reasonably necessary or desirable to make the correct delivery in a timely manner by GBO possible, such as delivering (or have delivered) in a timely manner complete, proper and
clear data or equipment, about which GBO states, or of which the Client understands or reasonably must understand, that these are necessary for the performance of the agreement.
3.5 If the data delivered by the Client is incomplete and/or incorrect, this will be fully at the expense and risk of the Client.
3.6 The Client will be obliged to inform GBO promptly with regard to facts and circumstances, which can be important related to the performance of the agreement.
3.7 The Client will be personally responsible for compliance with the statutory regulations that apply in countries where the Client introduces the items to the market.

4. Amendment of the agreement

4.1 If it appears during the performance of the agreement that it is necessary for the proper performance thereof to amend this agreement, or to add to this agreement, parties will in a timely manner and in mutual consultation proceed with amendment of the agreement.
4.2 If parties agree that the agreement is to be amended or added to, the point in time of completion of the performance can be impacted due to this.
4.3 If parties agree that the agreement will be amended or added to, this can have financial or qualitative consequences.
4.4 The non-performance or not immediate performance of the amended agreement will not provide a breach of contract by GBO and also will not provide a basis for the Client to terminate or cancel the agreement.
4.5 GBO can refuse a request for amendment of the agreement without thereby being in default.
4.6 If GBO agrees a fixed productprice with the Client, GBO nevertheless will be entitled at any time to increase this price without the Client in that case being entitled to terminate the agreement for this reason if the increase of the price ensues from an increase of the price of raw materials, purchaseprices and/or currencychanges.

5. Delivery, delivery period and risk transfer

5.1 Unless this ensues otherwise from the agreement or if parties have agreed otherwise in writing, delivery will take place “ex works”.
5.2 A period agreed between parties for the completion of the agreement or for the delivery of specific items will be indicative and therefore will never be a final deadline. In the event a period is exceeded, the Client must therefore first provide GBO with notice of default in writing. GBO must be offered a reasonable period thereby in order to be able to still provide performance of the agreement at a later date. The execution period will not commence any earlier than
after the Client has made the required data or materials correctly and completely available to GBO, or as the case may be insofar as applicable, after the Client has made the down payment.
5.3. In the event that a stated delivery period (or completion period) is exceeded resulting from an incident that is in fact beyond the control of GBO and that cannot be attributed to GBO’s action and/or omission, as inter alia described in article 11 of these General Terms and Conditions, this period will be automatically extended by the period that was exceeded resulting from such an incident.
5.4 The Client will be obliged to take delivery of the items at the time when these are made available to the Client. If the Client refuses to take delivery or fails to provide the information or instructions that are necessary for the delivery, GBO will be entitled to store the goods at the expense and risk of the Client.

6. Fee and payment

6.1 In the event delivery of services or items GBO will have the right to the agreed price for executing the agreement.
6.2 All payments by the Client must be made without deduction, setoff or suspension, within 14 days after the invoice date, unless parties have agreed otherwise in writing, or a derogating payment term has been included in the invoice.
6.3 Complaints with regard to an invoice must be reported in writing to GBO within 14 days after the invoice date.
6.4 If the Client is in default wholly or in part of payment of the amounts owed, the Client will owe to GBO the statutory commercial interest and extrajudicial collection costs.
6.5 In the event of liquidation, bankruptcy, attachment or moratorium on the part of the Client, GBO’s claims against the Client will be immediately due and payable.
6.6 In case of default, every payment by the Client will firstly serve to settle the interest owed and thereupon to settle the costs related to the collection. Only after payment of these amounts will any payment by the Client serve to settle the outstanding principal sum.
6.7 GBO will be entitled to execute the agreement in different stages and to invoice separately for the part thus executed.

7. Retention of title, retention and suspension

7.1 All items delivered or still to be delivered, including also products, designs, sketches, information, files, advice, results, etc. remain the exclusive property of GBO until all claims that GBO has or will have against the Client, including but not limited to the claims on the basis of Section 92 subsection 2 Book 3 of the Civil Code (interest and (extra)judicial costs) and attributable failure, have been paid in full. GBO can keep all received or generated items, data, documents and such like in its possession, in spite of any existing obligation to hand them over, until the Client has paid all the amounts owed to GBO.
7.2 As long as the ownership of the delivered items has not transferred to the Client, the Client will not be permitted to pledge or encumber the items with any other right for the benefit of a third party.
7.3 If third parties levy attachment on the items delivered subject to retention of title, or as the case may be want to establish or enforce rights thereto, the Client will be obliged to immediately inform GBO thereof.
7.4 In the event of attachment, moratorium or bankruptcy the Client will immediately inform GBO of this and point out GBO’s (ownership) rights to the bailiff, the administrator or the receiver levying the attachment.
7.5 The items delivered subject to retention of title can be sold and transferred by the Client to third parties, provided that this takes place in the course of the usual operation of the Client’s business.
7.6 The Client will be obliged to keep the goods delivered by GBO subject to retention of title with due care and as recognisably the property of GBO.
7.7 The Client will be obliged to insure the items for the duration of the retention of title against fire, explosion and water damage, as well as against theft.
7.8 If GBO wants to exercise its right as described in this article the Client will be obliged to provide access to GBO to all locations where GBO’s items are situated. All costs that GBO must incur to take back the items will be at the expense of the Client.
7.9 GBO will be permitted to suspend the execution of the assignment:
a. after the payment term has expired and the Client, after having been demanded in writing to still make payment, omits to do this or does not fully or does not in a timely manner fulfil any other obligation under the agreement, or if GBO must understand due to a notification or conduct on the part of the Client that payment will be dispensed with;
b. if an agreement is executed in stages GBO will be entitled to suspend the execution of the parts that form part of a following stage until the Client has approved the results of the previous stage in writing;
c. if after the concluding of the agreement GBO acquires knowledge of circumstances that give good grounds to fear that the Client will not fulfil the obligations;
d. if due to delay on the part of the Client it can no longer be expected of GBO that it will perform the agreement subject to the originally agreed terms and conditions.
7.10 The provisions referred to in this article will not affect the other rights accruing to GBO.

8. Intellectual property rights and property rights, use of the result

8.1 Unless parties have agreed otherwise in writing all intellectual property rights ensuing from the assignment, including but not limited to the patent right, trademark right, drawing or design right and copyright to the results from the assignment will accrue to GBO.
8.2 The Client exclusively acquires the right of use of the result, but only after the Client has fulfilled all the Client’s (payment) obligations on the basis of the agreement. The Client is only permitted to use the result for the purpose for which this has been made available to the Client.

8.3 Parties can agree in writing that the intellectual property rights referred to in article 8.1 are transferred wholly or in part by GBO to the Client. This transfer and any terms and conditions subject to which the transfer takes place must be recorded in writing at all times in an agreement concerning the transfer of the rights concerned. GBO will only provide a right of use to the Client until the time of the transfer.
8.4 The Client indemnifies GBO against claims by third parties with regard to intellectual property rights to all the materials and/or data provided by the Client that are used during the performance of the agreement.
8.5 Unless agreed otherwise the (originals of the) results achieved by GBO in the context of the assignment (such as but not limited to designs, drafts, advice, estimates, working drawings, illustrations, prototypes, scale models, moulds, (sub)products, source codes and other materials) remain the property of GBO, regardless of whether these have been made available to the Client or to third parties.
8.6 GBO has the right to also use the knowledge acquired on its part through the performance of the agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed hereby to third parties.

9. Guarantee

9.1 If a (manufacturer’s) guarantee is provided for the delivery (or completion), this will be made known to the Client in writing or by email.
9.2 The Client will be obliged to immediately inspect (or have inspected) the delivery (or completed work) at the time when the items are made available to the Client, or the work concerned has been executed. The Client must thereby inspect whether the quality and/or quantity of the delivery (or completed work) correspond with that which has been agreed and fulfil the requirements which parties have agreed concerning this. Any visible defects must be reported to GBO in writing within seven days after delivery and any invisible defects must be reported to GBO in writing or by email immediately, but in any event no later than within fourteen days after the discovery thereof, in the absence of which the Client will be deemed to have fully accepted and approved the result and no right will any longer accrue to the Client of repair, replacement or compensation.
9.3 If the Client complains in a timely manner, this will not suspend the Client’s payment obligation. In that event the Client will also remain obliged to take delivery of and payment of the other orders and/or delivered items, or as the case may be of the other agreed or delivered work.
9.4 Derogations from the (end) result with regard to that which has been agreed will not be any reason for rejection, reduction, compensation or termination of the agreement, if these derogations, taking all circumstances into consideration, are reasonably of minor significance and do not prevent the taking into use of the result, in which event the Client will be obliged to approve the result.
9.5 If it has been ascertained that an item is defective and a complaint in respect of this is made in a timely manner, GBO will, within a reasonable period after receipt of the return thereof or, if returning is not (reasonably) possible, written notification with regard to the defect from the Client, at the choice of GBO, replace or arrange the repair thereof or pay alternative compensation to the Client. In the event of replacement the Client will be obliged to return the replaced item to GBO and to transfer the ownership thereof to GBO, unless GBO states otherwise. GBO will not be obliged to accept return consignments from the Client without GBO’s permission in writing. Taking receipt of return consignments implies under no circumstances acknowledgement by GBO of the ground for the return consignment stated by the Client. The liability on the part of GBO is at all times limited to that which has been included in article 10.
9.6 Every form of guarantee will lapse and complaints about the delivery (or completion) will not be dealt with (further) if the delivery (or completed work) is used in a manner other than the prescribed manner, if a defect/error is wholly or in part the result of incorrect, careless, or incompetent use, if the Client or third parties have affixed changes to the delivery (or completed work), if a defect/error has arisen due to an external cause such as fire or water damage, destruction or weather conditions, if defects are the result of components and/or items that have not been delivered by GBO, and if defects are the result of the use that falls outside the technically permitted specifications.
9.7 If the Client has wrongly complained, or has wrongly relied on the guarantee, all (inspection) costs that GBO has incurred due to this will be charged to the Client.

10. Liability and time limit

10.1 In the event of an attributable failure, notice of default in writing must be given first to GBO, with a reasonable period to still fulfil its obligations, or as the case may be to remedy any errors or to limit or eliminate any damage.
10.2 GBO will be exclusively liable towards the Client for direct damage or loss that is attributable to GBO. The liability on the part of GBO for indirect loss, including consequential loss, lost profit, lost savings, corruption or loss of data or materials, imposed financial penalties, reputational damage, or loss due to business interruption, is expressly excluded. Direct damage exclusively includes the reasonable costs to ascertain the cause and the extent of the damage, insofar as the ascertaining relates to the damage within the meaning of these General Terms and Conditions, any reasonable costs incurred to have the defective performance of GBO correspond with the agreement, insofar as this can be attributed to GBO, and reasonable costs, incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have resulted in limitation of direct damage as referred to in these General Terms and Conditions.
10.3 The Client indemnifies GBO against any claims by third parties, who suffer damage related to the performance of the agreement and the cause of which is attributable to another party than GBO. If claims were to be made by third parties against GBO on that basis the Client will be obliged to assist GBO at law and otherwise and to promptly do all that can be expected of the Client in that case. If the Client remains in default of taking adequate measures GBO will be entitled to proceed itself therewith without any notice of default. All costs and damage on the part of GBO and third parties arisen through this will be fully at the expense and risk of the Client.
10.4 GBO will under no circumstances be liable for damage that has arisen or that has been caused because the Client or a third party uses the item and/or the service for another purpose than for which this was intended, because the Client or a third party affixes changes, due to acts or omissions of the Client or a third party, or because GBO has proceeded from incorrect and/or incomplete data, materials, products and suchlike provided by or on behalf of the Client.
10.5 If GBO is compelled, in its opinion, to take measures, or to provide cooperation to recall actions initiated by producers for the prevention of (further) damage resulting from claims on the basis of a defect of delivered items, the Client undertakes to provide cooperation to such measures. GBO can never be held liable for the damage suffered by the Client due to the initiated recall actions.
10.6 The liability on the part of GBO is limited to GBO’s fee for the assignment, or at least that part of the assignment the liability relates to, with the exception of intention or wilful recklessness on the part of GBO. This amount will not be more than € 75,000 (in words: seventy-five thousand Euro) and in any event will be limited at all times to the maximum of the amount that the insurer pays to GBO in the particular case.
10.7 The rights of claim and other entitlements of the Client on whatsoever basis towards GBO will lapse in any event after the passing of 1 year from the time when a fact occurs that enables the Client to use these rights and/or entitlements towards GBO.

11. Force majeure

11.1 GBO will not be obliged to fulfilment of any obligation towards the Client if GBO is prevented therefrom as a result of a circumstance not attributable to fault and which, in accordance with the law, a legal act or according to generally accepted standards, is not on the account of GBO.
11.2 Force majeure includes in these General Terms and Conditions, in addition to that which is included concerning this matter in the law and case law, all external causes, foreseen or unforeseen, beyond the control of GBO, such as: hindrances caused by third parties, including authorities; hindrances in transport; theft; weather influences; industrial actions wholly or in part; riots, terrorism, wars or threats of war, nationally as well as in the countries of origin of the items; loss or damage of items during the transport thereof; the failure to deliver (in a timely manner or other manner) to GBO by its suppliers; export and import prohibitions; fires, breakdowns and accidents in GBO’s business or its suppliers’ business; the burning of GBO’s means of transport, or the means of transport of the transport company engaged by GBO, the occurrence of breakdowns therein, becoming involved in accidents thereof; the imposing of levies, or other measures taken by authorities, causing changes in the actual circumstances; power failure; internet breakdown; breakdowns of email traffic.
11.3 Force majeure also includes any non-attributable shortcoming on the part of GBO’s suppliers, as a result of which GBO cannot fulfil its obligations or cannot fulfil its obligations in a timely manner or cannot completely fulfil its obligations.
11.4 GBO can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties will be entitled to terminate the agreement, without any obligation of compensation of damage to the other party.
11.5 Insofar as GBO at the time of the occurrence of the force majeure has meanwhile partially fulfilled its obligations under the agreement or will be able to fulfil these, and the fulfilled, or to be fulfilled part has an independent value, GBO will be entitled to invoice the Client separately for the part already fulfilled or to be fulfilled. The Client will be obliged to pay this invoice as if it were a separate agreement.

12. Notice and termination of the agreement

12.1 Each of the parties will be entitled to terminate the agreement only if the other party, after proper and detailed notice of default in writing, whereby a reasonable period is set out for remedying the failure, culpably fails in the fulfilment of the essential obligations pursuant to the agreement.
12.2 If GBO’s work consists of the repeated execution of similar work there will be a continuing performance contract, unless agreed otherwise in writing. This continuing performance contract can only be terminated by notice of termination in writing with due regard to a reasonable notice period of at least three months, during which period the Client will continue to purchase the usual quantity of work from GBO, or as the case may be will financially compensate GBO.
12.3 GBO can terminate the agreement, wholly or in part, with immediate effect, without notice of default and without judicial intervention, by means of notice in writing if moratorium, whether or not provisionally, is granted to the Client, if a petition for bankruptcy is submitted with regard to the Client, if the Client’s enterprise is terminated, or if the Client does not fulfil the obligations ensuing from the agreement for the Client and this failure to fulfil justifies termination. GBO will never be obliged to any compensation due to this termination.
12.4 If GBO at the time of the termination has already provided goods or services for the performance of the agreement, these goods and services and the payment obligations related thereto cannot be the subject of revocation. The amounts invoiced by GBO prior to the termination and that GBO is still permitted to invoice will remain owed in full and will be immediately due and payable at the time of the termination.
12.5 If the agreement is terminated in the interim by GBO, GBO will in consultation with the Client ensure the transfer of the work still to be executed to third parties. This is unless the termination is attributable to the Client. If the transfer of the work involves extra costs for GBO, these will be charged to the Client.
12.6 If the Client terminates the agreement without any attributable failure on the part of GBO, or if GBO terminates the agreement due to an attributable failure by the Client in the performance of the agreement, the Client will owe compensation in addition to the fee and the costs incurred with regard to the work executed until that time.

13. Miscellaneous provisions

13.1 The Client is not permitted to transfer to third parties any right under an agreement concluded with GBO, other than in the event of transfer of the entire enterprise of the Client, or with prior permission in writing from GBO.
13.2 Parties are obliged to maintain confidentiality of all (confidential) information, facts and circumstances that the other party acquires knowledge of, in the context of the agreement, from each other or from another source, which parties could reasonably understand that disclosure or notification thereof to third parties could cause damage to GBO or the Client. Third parties, who will be involved in the performance of the agreement, will be bound with regard to these facts and circumstances originating from the other party, to the same confidential treatment thereof.
13.3 If any provision of these General Terms and Conditions is null and void, or declared void, the remaining provisions of these General Terms and Conditions will remain in full effect. The null and void or voided provisions will be replaced by GBO in the course of which the effect of the original provision(s) will be observed as much as possible.
13.4 If GBO does not always require strict compliance with these General Terms and Conditions, this will not mean that the provisions thereof are not applicable, or that GBO would to any extent lose the right in other cases to require strict compliance with the provisions of these General Terms and Conditions.
13.5 If there is a lack of clarity with regard to the interpretation of one or more provisions of these General Terms and Conditions the interpretation must take place “in the spirit” of the provisions concerned.
13.6 If a situation arises between parties that has not been arranged in these General Terms and Conditions this situation must be assessed “in the spirit” of these General Terms and Conditions.
13.7 All agreements between GBO and the Client are governed by and construed in accordance with the law of the Netherlands.
The applicability of the Vienna Sales Convention is expressly excluded. All disputes ensuing from or related to this agreement or agreements ensuing from this agreement, must be made pending before the court with competent jurisdiction of the Oost-Brabant District Court.