General terms and conditions of services

These are the General Terms and Conditions of VDS Instruments (hereinafter referred to as "VDS Instruments"), a company located at Industrieweg 5 in Wolvega. VDS Instruments is registered with the Chamber of Commerce under number 81342276.

Definitions

In these Terms and Conditions, the following terms have the following meanings, unless expressly stated otherwise:

General Terms and Conditions: these general terms and conditions as stated hereinafter.

Company: the Counterparty acting in the exercise of a trade or profession.

BW: the Civil Code.

Service: All activities, in whatever form, that VDS Instruments performs for or on behalf of the Counterparty.

Assignment: All work, in whatever form, that VDS Instruments performs for or on behalf of the Counterparty.

Agreement: Any agreement entered into between VDS Instruments and the Counterparty.

Product: All items that are the subject of an Agreement.

Counterparty: the Company that has accepted these General Terms and Conditions and has commissioned the performance of a Service.

Unless the General Terms and Conditions expressly provide otherwise, when interpreting the General Terms and Conditions, the singular shall be deemed to include the plural and vice versa, and a reference to the masculine form shall be deemed to include a reference to the feminine form and vice versa.

Applicability

1. These General Terms and Conditions apply to every offer, quotation and Agreement concluded between VDS Instruments and the Counterparty, unless the parties have expressly deviated from these General Terms and Conditions in writing.
2. These General Terms and Conditions also apply to agreements with E-com VDS instruments, for the execution of which third parties must be involved.
3. The applicability of general terms and conditions of the Counterparty is expressly rejected.
4. Deviations from the Agreement and General Terms and Conditions are only valid if they have been expressly agreed in writing between the parties.

Quotes and/or offers

1. All quotations and/or offers that do not expressly state otherwise are considered non-binding and can be revoked at any time, even if they contain a term for acceptance. Offers/quotations may also be revoked in writing by VDS Instruments within seven days of receipt of acceptance, in which case no agreement will have been reached between the parties.

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2. All quotations and/or offers from VDS instruments are valid for 4 weeks, unless stated otherwise.
3. VDS Instruments cannot be held to its quotations and/or offers if the Counterparty, based on reasonableness and fairness and generally accepted views in society, should have understood that the quotation and/or offer or a part thereof contained an obvious error or typographical error.
4. If the acceptance, whether on minor points or otherwise, deviates from the offer included in the quotation and/or offer, VDS Instruments is not bound by it. The Agreement will not be concluded in accordance with this deviating acceptance, unless VDS Instruments indicates otherwise.

Establishment of agreement

1. The Agreement is entered into upon acceptance by the Counterparty of the quotation and/or offer of VDS instruments.
2. Quotations and/or offers can only be accepted in writing (including electronically). VDS Instruments is nevertheless entitled to accept an oral acceptance as if it were made in writing.
3. An Agreement between the parties is concluded at the moment that VDS Instruments receives an order confirmation from the Counterparty, or at the moment that VDS Instruments actually commences execution.
4. The Agreement supersedes and replaces all prior proposals, correspondence, agreements or other communications, whether written or oral.

Execution of agreement

1. The Agreement will be performed by VDS Instruments to the best of its knowledge and ability, in accordance with the requirements of good workmanship. VDS Instruments is bound by a best efforts obligation with regard to the intended work. The application of Articles 7:404, 7:407 paragraph 2, and 7:409 of the Dutch Civil Code is expressly excluded.
2. VDS Instruments determines how and by which person(s) the Assignment is carried out. VDS Instruments is authorized to have certain work performed by third parties.
3. VDS Instruments is entitled to execute the Agreement in phases. If the Agreement is executed in phases, VDS Instruments has the right to invoice each completed phase separately. If and as long as this invoice is not paid by the Counterparty, VDS Instruments is not obligated to execute the next phase and has the right to suspend the Agreement.
4. VDS Instruments is entitled to the days off announced in advance, despite any minimum number of hours stated in the Agreement.

Changes and additional work

1. If, during the performance of the Agreement, it becomes apparent that it is necessary to amend or supplement the Agreement for proper execution, VDS Instruments will inform the Counterparty as soon as possible. The Parties will then amend the Agreement in a timely manner and in mutual consultation.

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2. If the parties agree to amend/supplement the Agreement, the completion date may be affected. VDS Instruments will inform the other party of this as soon as possible.
3. If the amendment or addition to the Agreement will have financial, quantitative and/or qualitative consequences, VDS Instruments will inform the Counterparty about this in advance.
4. If a fixed rate or price has been agreed upon, VDS Instruments will indicate the extent to which the amendment/addition to the Agreement will affect the rate/price. VDS Instruments will attempt, where possible, to provide a price quote in advance.
5. VDS Instruments will not be able to charge additional costs if the change/addition is the result of circumstances that can be attributed to VDS Instruments.
6. Amendments to the original Agreement concluded between the parties will only be valid from the moment these amendments have been accepted by both parties by means of a supplementary or amended Agreement.

Obligations of the Counterparty

1. The Counterparty shall ensure that all data, equipment, or spaces that VDS Instruments indicates are necessary, or that the Counterparty reasonably should understand are necessary, for the performance of the Agreement, are available in a timely manner. The Counterparty shall also grant VDS Instruments all powers and authorizations necessary to properly execute the Assignment.
2. VDS Instruments is not liable for damages of any nature whatsoever resulting from VDS Instruments relying on incorrect and/or incomplete information provided by the Counterparty, unless such incorrectness or incompleteness should have been apparent to VDS Instruments.
3. The Counterparty shall refrain from any conduct which makes it impossible for VDS Instruments to properly carry out the Order.
4. If VDS Instruments or third parties engaged by VDS Instruments carry out work at the Counterparty's location or a location designated by the Counterparty in connection with the Assignment, the Counterparty shall provide the reasonably required facilities free of charge.
5. If the Counterparty has not fulfilled its obligations as set out in this article, VDS Instruments shall have the right to suspend the performance of the Agreement and/or charge the Counterparty for the additional costs resulting from the delay at the usual price or rates.

Revision

1. After delivery of the Product and/or Service, the Counterparty shall be entitled to two revisions of the Service without the Counterparty being liable for any additional compensation, unless explicitly agreed otherwise.
2. Further revisions or changes to the original order are not included in the price and will be charged separately at the current VDS Instruments rate.

Cancellation

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1. VDS Instruments reserves the right to change the training date or cancel the Order at any time. VDS Instruments will inform the Counterparty of this as soon as possible. VDS Instruments will, where possible, offer a new training course. If this is not possible, the Counterparty will refund any amounts already paid to VDS Instruments.
2. Cancellation of the Order by the Counterparty is only possible in compliance with the following provisions:
   1. Cancellation must always be made in writing;
   2. In case of cancellation less than 50% before the start of the training, 50% of the price is due; and
   3. In case of cancellation less than 2 days before the start of the training, the Counterparty is liable for the full price.
3. The costs charged by the training location for VDS instruments in the event of cancellation or postponement will be charged to the Counterparty if the Counterparty cancels or postpones the execution of a training course.
4. In the event of cancellation, the Counterparty is entitled to have someone else participate in the training in its place.
5. Any amounts already paid, less the amount due due to cancellation, will be deducted from a new training course by VDS Instruments, to the extent possible. If this is not possible, VDS Instruments will refund this amount to the Counterparty.
6. In the event of misconduct by a person or if a person violates the applicable order and security measures, VDS Instruments is entitled to deny the person in question access to the training without any refund of the training costs being due.

Risk transfer

1. The Products that are the subject of the Agreement shall be at the expense and risk of VDS Instruments as a Company until the time at which the Products are made available to the Counterparty.
2. The risk of loss, damage or depreciation of Products that are the subject of the Agreement shall pass to the Counterparty as Company at the time when the Products are made available to the Counterparty or a third party to be designated by the Counterparty.

Prices

1. Unless expressly agreed otherwise in writing, the prices and rates stated by VDS Instruments always include VAT.
2. Prices and rates are exclusive of shipping, travel, accommodation and other expenses, unless otherwise agreed.
3. If no rate has been expressly agreed upon, the rate will be determined based on the actual hours spent and the usual rates of VDS instruments.
4. VDS Instruments will inform the Counterparty in a timely manner before concluding the Agreement of all additional costs or provide information on the basis of which these costs can be charged to the Counterparty.
5. If VDS Instruments agrees on a fixed price or fixed rate when concluding the Agreement, VDS Instruments is entitled to increase this, even if the price or rate was not originally given subject to reservation.

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6. In the event VDS Instruments intends to change the price or rate, it will inform the Counterparty of this as soon as possible.
7. If the increase in price or rate takes place within three months after the conclusion of the Agreement, the Counterparty may terminate the Agreement by a written statement, unless:
   1. the increase results from a power or an obligation imposed on VDS instruments under the law;
   2. the increase is caused by an increase in the price of raw materials, taxes, production costs, exchange rates, wages, etc. or on other grounds that were not reasonably foreseeable when entering into the Agreement;
   3. VDS instruments is still prepared to execute the Agreement on the basis of the original agreement; or
   4. it has been agreed that the performance will be carried out more than three months after the conclusion of the Agreement.

Payment

1. Payment is made by transfer to a bank account designated by VDS Instruments, unless otherwise agreed.
2. VDS Instruments will send an invoice for the amounts owed by the Counterparty. The payment term for each invoice is 14 days from the date of the invoice, unless otherwise stated on the invoice or otherwise agreed.
3. Invoicing takes place weekly, unless otherwise agreed.
4. VDS Instruments and the Counterparty may agree that payment will be made in installments proportional to the progress of the work. If payment in installments has been agreed, the Counterparty must pay according to the terms and percentages as set out in the Agreement.
5. Objections to the amount of the invoice do not suspend the Counterparty's payment obligation.
6. The Counterparty is not entitled to deduct any amount from the amount owed by reason of a counterclaim asserted by it.
7. In the event of non-payment or late payment, the Counterparty is automatically in default without notice of default. The Counterparty will then owe statutory commercial interest from the date on which payment was due until the date of full payment, with interest for part of a month being calculated as a full month.
8. With regard to extrajudicial (collection) costs, VDS Instruments is entitled to compensation of 15% of the total outstanding principal amount with a minimum of €10% for each invoice that has not been paid in full or in part.
9. In the event of bankruptcy, suspension of payments, liquidation, general seizure of assets, death or guardianship, the claims of VDS Instruments and the obligations of the Counterparty towards VDS Instruments shall become immediately due and payable.
10. Any reasonable legal costs and enforcement costs incurred shall also be borne by the Counterparty.
11. By paying the related invoice, the other party automatically agrees to the entire general terms and conditions.

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Retention of title

1. Ownership of the Products delivered by VDS Instruments to the Counterparty will only be transferred to the Counterparty once the Counterparty has properly fulfilled all obligations and paid all amounts owed to it under the Agreement.
2. The amount owed also includes reimbursement of all costs and interest (including for previous and subsequent deliveries), as well as claims for damages due to failure to perform.
3. As long as ownership of the delivered goods has not been transferred to the Counterparty, the Counterparty may not resell, pledge or otherwise encumber any item subject to the retention of title, except in the normal course of its business.

Advertisements

1. The Counterparty must examine the delivered Product at the time of delivery, but in any case within 7 days after delivery, to determine whether the delivered Product complies with the Agreement, or at least meets the requirements that apply to it in normal commercial transactions.
2. The Counterparty must examine the Service at the time of performance, but in any case within 7 days after performance, to determine whether the Service delivered complies with the Agreement.
3. Visible defects and shortages must be reported to VDS Instruments in writing within 7 days of delivery of the Product. The defective Product must be returned along with proof of purchase, unless this is impossible or unreasonably onerous.
4. Complaints must be reported to VDS Instruments in writing within 7 days after completion of the Service.
5. Hidden defects and shortages in a Product must be reported to VDS Instruments within 7 days of discovery. The defective Product must be returned along with proof of purchase, unless this is impossible or unreasonably onerous.
6. The right to (partial) refund of the price, repair or replacement or compensation shall lapse if defects are not reported within the specified period, unless a longer period arises from the nature of the Product and/or Service or from the circumstances of the case.

Guarantees

1. VDS Instruments guarantees that the delivered Products comply with the Agreement. VDS Instruments also guarantees that the delivered Products meet the usual requirements and standards that can reasonably be expected of them and that the Products possess the properties that, considering all circumstances, are necessary for normal use.
2. VDS Instruments guarantees that the Services provided comply with the Agreement and are performed with good workmanship and using proper materials.
3. The warranty stated in these General Terms and Conditions applies to use within and outside the Netherlands.

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4. If the delivered Product has been manufactured by a third party, the warranty provided by this third party applies, unless otherwise stated.
5. If the delivered Product and/or the Service performed does not meet the warranty, VDS Instruments will, after the Counterparty has notified this, proceed to replacement or repair free of charge within a reasonable period of time.
6. If the warranty period has expired, all costs for repair or replacement (including administration, shipping and call-out costs) will be borne by the Counterparty.
7. Any warranty will be void if a defect arises from improper use or lack of care, or if it is the result of modifications made to the delivered goods by the Counterparty or third parties. VDS Instruments is also not liable for any damage resulting from these defects.
8. The warranty also expires if the defect is caused by or results from circumstances beyond VDS Instruments' control. These circumstances include, but are not limited to, weather conditions.

Delivery time

1. If a delivery term has been agreed or specified, this term is only indicative and should never be regarded as a fatal term, unless expressly agreed in writing.
2. VDS Instruments shall not be liable in the event of any consequences to the Counterparty resulting from exceeding delivery times, unless there is intent or gross negligence on the part of VDS Instruments.
3. If VDS Instruments requires data, materials or instructions from the Counterparty that are necessary for delivery, the delivery time commences after the Counterparty has provided these to VDS Instruments.
4. VDS Instruments is not legally in default after the agreed delivery dates have expired. A further written notice of default is required in each case, granting VDS Instruments a period of at least 14 days to fulfill its obligations.
5. A notice of default is not required if delivery has become permanently impossible or it has otherwise become apparent that VDS Instruments will not fulfill its obligations under the Agreement. If VDS Instruments fails to deliver within this period, the Counterparty has the right to terminate the Agreement in accordance with Article 265, Book 6 of the Dutch Civil Code.

Force majeure and unforeseen circumstances

1. A breach cannot be attributed to VDS Instruments or the Counterparty, as the breach is not their fault, nor is it their responsibility under law, legal act, or generally accepted standards. In this case, the parties are also not obligated to fulfill the obligations arising from the Agreement.
2. In the General Terms and Conditions, force majeure is understood to mean, in addition to what is understood in that area in law and case law, all external causes, foreseen or unforeseen, over which VDS instruments has no influence and which prevent VDS instruments from fulfilling its obligations.
3. Force majeure of VDS instruments in any case means:
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4. strikes;
5. traffic disruptions;
6. government measures that prevent VDS instruments from fulfilling its obligations in a timely or proper manner;
7. riots, uproar, war;
8. traffic obstructions;
9. shortage of labor;
10. extreme weather conditions;
11. fire;
12. import, export and/or transit bans; and/or
13. any circumstance that impedes the normal course of business as a result of which the Counterparty cannot reasonably be expected to comply with the Agreement by VDS Instruments.

Termination of agreement

1. Parties may terminate the Agreement at any time by mutual consent.
2. Parties may terminate the Agreement in writing at any time with 7 days' notice.
3. Parties may terminate the Agreement in writing with immediate effect in the event of:
   1. application by or granting of a suspension of payments to the other party;
   2. application for bankruptcy or declaration of bankruptcy of the other party; or
   3. liquidation of the other party or non-temporary cessation of the other party's business.
4. If the Agreement is terminated, VDS Instruments' claims against the Counterparty become immediately due and payable. If VDS Instruments suspends performance of its obligations, it retains its rights under the law and the Agreement. VDS Instruments always reserves the right to claim damages.

Return of items made available

1. If VDS has provided instruments to the Counterparty in the performance of the Agreement, the Counterparty is obligated to return these items in their original condition, free of defects, and complete within 14 days. If the Counterparty fails to comply with this obligation, all resulting costs will be borne by the Counterparty.
2. If the Counterparty, for whatever reason, after appropriate notice, remains in default of the obligation referred to in paragraph 1 of this article, VDS Instruments shall have the right to recover the resulting damage and costs, including replacement costs, from the Counterparty.

Liability

1. VDS Instruments is only liable for direct damage caused by gross negligence or intent on the part of VDS Instruments, and not for more than the amount paid by the insurer to VDS Instruments or up to a maximum of once the amount stated on the invoice.
2. Direct damage is understood to mean only:

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1. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of the General Terms and Conditions;
2. reasonable costs incurred to ensure that the defective performance of VDS instruments complies with the Agreement, to the extent that these can be attributed to VDS instruments; or
3. reasonable costs incurred to prevent or limit damage, to the extent that the Counterparty demonstrates that these costs have led to a limitation of direct damage as referred to in the General Terms and Conditions.
4. VDS Instruments shall never be liable for indirect damage, including consequential damage, lost profits, lost savings, damage due to business stagnation, damage resulting from the provision of inadequate cooperation and/or information from the Counterparty, damage due to non-binding information or advice provided by VDS Instruments, the content of which does not expressly form part of the Agreement, and all damage that does not fall under direct damage as defined in these general terms and conditions.
5. VDS Instruments shall never be liable for errors in the material provided by the Counterparty or for misunderstandings or errors regarding the performance of the Agreement if these are caused by actions of the Counterparty, such as the untimely or non-delivery of complete, proper and clear data/materials.
6. VDS Instruments shall never be liable for errors if the Counterparty has previously given its approval or has been given the opportunity to carry out an inspection and has indicated that it does not require such an inspection.
7. The limitations of liability set out in this article are also stipulated for the benefit of third parties engaged by VDS Instruments for the performance of the Agreement, and VDS Instruments shall never be liable for damage caused by shortcomings of these third parties.
8. VDS Instruments is not liable for damage to or loss of documents during transport or during shipment by post, regardless of whether the transport or shipment is carried out by or on behalf of VDS Instruments, the Counterparty, or third parties.

Confidentiality

1. Both parties are obligated to maintain confidentiality of all confidential information they have obtained from each other or from other sources in connection with the Agreement. Information is considered confidential if the other party has indicated this or if this is evident from the nature of the information. The party receiving confidential information will use it only for the purpose for which it was provided.
2. If, on the basis of a statutory provision or a court ruling, VDS instruments is obliged to provide confidential information to third parties designated by law or the competent court, and VDS instruments cannot invoke a statutory right of non-disclosure or a right recognised or permitted by the competent court, then VDS instruments shall not be obliged to pay damages or compensation and the Other Party shall not be entitled to terminate the Agreement on the grounds of any damage arising as a result.
3. Notwithstanding the foregoing, VDS Instruments is entitled to include the name of the Counterparty on a list of relations, which will be published on the website or via other expressions to third parties, unless otherwise agreed.

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Indemnification

1. The Counterparty shall indemnify VDS instruments to the extent permitted by law against any liability towards one or more third parties arising from and/or in connection with the performance of the Agreement, regardless of whether the damage was caused or inflicted by VDS instruments or its assistant(s), auxiliary materials or delivered Products or Services.
2. In addition, the Counterparty indemnifies VDS Instruments, to the extent permitted by law, against all claims by third parties in connection with any infringement of intellectual property rights of these third parties.
3. The Counterparty is always obliged to make every effort to limit the damage.

Intellectual property

1. All intellectual property rights to all products, materials, analyses, designs, sketches, software, documentation, advice, reports, (electronic) information and preparatory material thereof (collectively the “IP Material”) developed or made available in connection with the performance of the Agreement, shall remain the exclusive property of VDS Instruments or its licensors.
2. The Counterparty shall only acquire any rights and powers with respect to the IP Material that arise from the Agreement and/or that are expressly granted in writing.
3. The Counterparty is not permitted to transfer any acquired right or authority with respect to the IP Material to third parties without the prior written consent of VDS Instruments.
4. The Counterparty is not permitted to remove or alter any indication concerning intellectual property rights such as copyrights, trademarks or trade names from the IE Material, unless otherwise agreed.
5. VDS Instruments is permitted to implement technical measures to protect the IP Material. If VDS Instruments has secured the IP Material through technical protection, the Counterparty is not permitted to remove or circumvent this protection.
6. Any exploitation, reproduction, use or disclosure by the Counterparty of the IP Material that falls outside the scope of the Agreement or the rights and authorities granted, shall be considered a violation of the intellectual property rights of VDS Instruments.
7. The Counterparty shall pay to VDS instruments an immediately due and non-mitigable fine of €150 per infringing act for any such breach, without prejudice to VDS instruments' right to receive compensation for its damages resulting from the breach or to take other legal measures to end the breach.
8. There will be no infringement of intellectual property rights if the Counterparty has received express written permission from VDS Instruments for the exploitation, reproduction, use or publication of the IP Material that falls outside the scope of the Agreement or the rights and powers granted.
9. All IP material developed by VDS Instruments for the performance of the Agreement may be used by VDS Instruments for its own promotional purposes, unless otherwise agreed with the Counterparty.

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Privacy

1. VDS Instruments respects the privacy of the Counterparty. VDS Instruments handles and processes all personal data provided to it in accordance with applicable legislation, in particular the General Data Protection Regulation. The Counterparty consents to this processing. To protect the Counterparty's personal data, VDS Instruments implements appropriate security measures.
2. VDS Instruments uses the personal data of the Counterparty solely in the context of the execution of the Agreement or the handling of a complaint.
3. For more information about privacy, please refer to the VDS Instruments website.

Expiration date

Notwithstanding the statutory limitation periods, a limitation period of one year shall apply to all claims and/or powers that the Counterparty may have against VDS instruments and/or against any third parties engaged by VDS instruments, from the moment at which a fact occurs that allows the Counterparty to exercise these rights and/or powers against VDS instruments and/or any third parties engaged by VDS instruments.

Transfer

1. The Counterparty is not permitted to transfer any rights or obligations arising from the Agreement to third parties without first obtaining written permission from VDS Instruments.
2. VDS Instruments is entitled to attach conditions to this permission.

Aftereffects

The provisions of the General Terms and Conditions and the Agreement which are expressly or by their nature intended to survive termination of this Agreement shall remain in full force and effect thereafter and shall continue to bind both parties.

Other

1. Any deviations from these General Terms and Conditions can only be agreed upon in writing. Such deviations do not confer any rights with regard to subsequent legal relationships.
2. The records of VDS instruments shall, unless proven otherwise, serve as evidence of the requests made by the Counterparty. The Counterparty acknowledges that electronic communication may serve as evidence.
3. If and to the extent any provision of the General Terms and Conditions and the Agreement is declared null and void or annulled, the remaining provisions of these General Terms and Conditions and the Agreement will remain in full force and effect. VDS Instruments will then establish a new provision to replace the void/annulled provision, taking into account the intent of the void/annulled provision as much as possible.

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4. The place of performance of the Agreement shall be deemed to be the place where VDS Instruments is established.

Applicable law and choice of forum

1. All Agreements, the Terms and Conditions, and all non-contractual rights and obligations arising therefrom, shall be governed in all respects by Dutch law.
2. All disputes between VDS Instruments and the Counterparty, which may arise as a result of an Agreement and/or the General Terms and Conditions, or of agreements resulting therefrom, shall be settled in the first instance by the competent judge of the Amsterdam District Court.

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