Article 1. Definitions
In these general terms and conditions the following terms, both in plural as in singular, are used in the sense given below, unless explicitly indicated otherwise:
- SB: the Dutch limited liability company Sustainable Buildings B.V., registered at the Chamber of Commerce the Netherlands under number 66375096, or its representatives, acting as provider of services.
- Client: the person or legal entity who uses the services of the SB as well as any organization with which the client is related or affiliated (corporately or by organization).
- Services: all services, work and deliveries which are offered by SB or requested by the client.
- Objects: materials, hardware, and/or other goods.
- Contract: an agreement in writing.
Article 2. Applicability
- These general conditions apply to all offers, contracts, agreements, services, supplies and works by SB, of any kind, unless that applicability is in writing explicitly excluded in whole or parts, or unless explicitly agreed otherwise.
- Any terms or conditions of the client are expressly rejected. Deviations from and additions to these terms and conditions shall apply only if and in so far as these have been accepted expressly and in writing by SB.
- These terms and conditions also apply to all agreements with SB, for the implementation of which third parties should be involved. These third parties may appeal directly on these conditions towards the client, including any exclusions or limitations of liability.
- SB reserves the right to change these conditions at any time. The most recently filed version shall always apply, or, the version that was valid at the time of the conclusion of the agreement.
- In the event of any conflicts between the substance of a agreement concluded between the client and SB and the present terms and conditions, the content of the agreement shall prevail.
Article 3. Offers and proposals
- All offers and quotations of SB are freely revocable and done without obligation, unless otherwise indicated.
- The client is responsible for the accuracy and completeness of the delivered specifications and other data requested by SB.
- Obvious errors or typographical errors in the offer of SB do not bind SB.
- A compound quotation does not oblige SB to carry out part of the assignment against a corresponding part of the given quotation.
- The prices in the offers and quotations of SB are exclusive of VAT (Dutch: BTW) and other Government levies, unless otherwise indicated.
- Offers and proposals shall not automatically apply to future orders.
Article 4. Realization of the agreement
- The agreement between the client and SB comes into force after SB has accepted an order in writing, unless one of the following terms applies. The order confirmation shall be deemed to represent the agreement correctly and completely, unless the client immediately protests in writing.
- The content of the agreement is exclusively determined by the quotation and order confirmation given by SB.
- Any supplementary agreements or amendments bind SB only after written confirmation by SB within fourteen (14) days and after absence of written protest by the client within three (3) business days after the confirmation of SB.
- For agreements, activities or transactions for which no written quotation is sent, the invoice shall be deemed to represent the agreement correctly and completely, unless the client objects, in writing, within seven (7) days of the invoice date.
- Any agreement will be entered under the suspensive condition that SB has the right to check the creditworthiness of the client, this related to the financial performance of the agreement. If SB has the opinion, on reasonable grounds, that the client does not represent satisfactory creditworthiness, then SB has the right to temporarily suspend its obligations. If there is such a suspension, SB will inform the client immediately in writing and offer the client the opportunity to provide security.
Article 5. Data provided by client
- The client shall ensure that all data, requested by SB or of which the client reasonably understands the necessity for the performance of the agreement, are in due time provided to SB.
- The client is responsible for the accuracy, completeness and reliability of the data provided by him, even if the data comes from third parties, unless provided otherwise regarding the nature of the agreement. The client indemnifies SB for all damages resulting from incorrect or incomplete (provided) data.
- If the data required for the execution of the agreement is not timely or not fully provided to SB, SB has the right to suspend the execution of the agreement and/or claim additional costs from the client resulting from the delay, according to the usual rates.
- SB shall not be liable for damage of whatever nature caused by the fact that SB is provided with incorrect and/or incomplete data by the client, unless SB should have been aware of this error or omission.
- In the case of electronic transmission of information of the client by SB to third parties, the client is regarded as the party that signs and sends the relevant information.
- During the agreement SB collects (real-time) data from the Client through the Service provided by SB. The Client ensures that he provides all facilities required to make this happen, for instance, but not limited to:
- a safe electricity connection within 3 meters from the measuring point;
- a stable wired internet connection;
- Access to the meter room and measuring spaces.
Article 6. Contract duration, implementation, price increase
- The agreement between SB and Client shall be entered into for a period of time as defined in the offer or contract. In all other cases the agreement shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise.
- If a specific period of time is agreed on or specified concerning the execution of certain activities or the delivery of certain goods or services, this shall never be a fatal deadline. If SB exceeds a deadline, the Client shall declare in writing that SB is in default. SB shall be given a reasonable period in which to comply with the contract at a later date.
- SB shall execute the agreement to the best insight and the best of his abilities and in accordance with the requirements of good workmanship. All this in accordance with state-of-the-art methods.
- lf activities are performed under the contract by SB or third parties hired by SB at the Client’s location or at a location designated by the Client, the Client shall in all reasonableness provide all facilities required by these workers free of charge.
- If during the fulfilment of the agreement it becomes clear that, for its proper implementation it is necessary to modify or supplement the agreement, parties will proceed to change the contract in time and by mutual deliberation. lf the nature, scope or content of the contract is changed, be it at the request or instigation of the Client, qualified authorities et cetera, and the contract is altered qualitatively and / or quantitatively, this may have consequences for what was originally agreed. This may result in an increase or decrease of the amount initially agreed on. In these cases SB shall make as much as possible an advance quotation hereof. A change in the contract may also lead to a change in the period of implementation initially specified. The Client accepts the possibility of change in the agreement, including a change of price and implementation period.
- lf the contract, including amendments, is changed, SB is only entitled to give implementation to this after the persons authorized by SB and Client have agreed to the price and other conditions specified, including the altered time of implementation. Failure or delay of implementation of the amended contract does not lead to breach of contract on the part of the SB and shall be no reason for Client to terminate or cancel the contract.
- SB shall not be in default if SB refuses to comply with a request for amendment of the contract if this were to have qualitative or quantitative consequences for instance for the work to be done or the goods to be delivered under the contract.
- lf the Client fails in the proper fulfilment of his obligations to SB, the Client shall be liable for all direct or indirect damages on the part of SB.
- lf SB agrees on a fixed fee or fixed price, SB nevertheless always has the right to increase this fee or price without the Client being entitled to terminate the agreement for this reason, if the increase results from a power or duty under the law or has its origin in an increase of the price of raw materials, wages, etc., or for other reasons that were reasonably unforeseeable at the time the contract was drafted.
Article 7. Third parties – activities and objects
- SB has the right to have certain activities performed by third parties or have certain objects delivered by such third parties.
- In a case as described in 7.1 the applicability of article 7:404, 7:407 clause 2 and 7:409 BW (Dutch Civil Code) is hereby expressly excluded, meaning:
- that the agreement between the client and SB is not intended to be performed by a specific person or company, even if it’s the client’s express or implied intention that service is provided by a specific person;
- that if SB and a third party have jointly engaged themselves towards a client to perform a service, SB (with the third party) is not joint and several liable for a failure in the performance of any obligation from this agreement, but solely liable for the service performed by SB;
- that the agreement between the client and SB will not end with the death of any specific person within SB.
Article 8. Contract suspension, cancellation
- SB is authorized to suspend or cancel the fulfilment of the obligations or to terminate the contract if the Client does not fulfil the obligations under the contract, does not fulfil them completely or in time or if SB learns of circumstances after the contract is made giving good grounds to the fear that the Client will not fulfil the obligations, if the Client was asked to stand security to the execution of the contract and this security fails to appear, is insufficient or if by the delay on the part of the Client SB can no longer be expected to fulfil the agreement at the conditions originally agreed on.
- Furthermore, SB is entitled to terminate the contract if circumstances arise of such a nature that fulfilment of the contract has become impossible or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer in all reasonableness be expected from SB.
- lf the contract is terminated, the SB’s claims on the Client shall become immediately claimable. lf SB suspends the fulfilment of the obligations, it shall retain its rights under the law and under the contract.
- lf SB suspends or terminates the contract, it is in no way liable for the payment of damages and costs caused by the suspension or termination.
- lf the termination of the contract is attributable to Client, SB is entitled to compensation of these damages, including direct and indirect costs caused by this.
- lf the Client fails to comply with the obligations resulting from the contract and this failure to do so justifies termination, SB is entitled to terminate the contract immediately and as of that date without any obligation on his part to pay any damages or compensation, while the Client, by virtue of default, is in fact obliged to pay damages or compensation.
- lf the contract is terminated prematurely by SB, SB, in consultation with the Client, shall arrange a transfer of the work still to be done to third parties unless the termination is attributable to the Client. lf the transfer of work involves additional costs for the SB, these shall be charged to the Client. The Client is obliged to pay these costs within the period specified, unless SB indicates otherwise.
- In case of liquidation, (application of) suspension of payment or bankruptcy or seizure − if and when the seizure is not lifted within three months − at the expense of the Client, of debt repayment or any other circumstance causing inability on the Client´s part to freely dispose of his means, SB is free to terminate the contract directly and with immediate effect, or to discontinue the order or contract without any obligation on his part to pay any damages or compensation. In this case the SB’s claims against the Client shall be due immediately.
- lf the Client cancels a placed order entirely or partially, the work performed and the objects ordered or prepared, plus any supply, removal or delivery costs and the work time reserved for the execution of the job will be charged entirely to the Client.
Article 9. Force majeure
- SB is not obliged to perform any obligation to the Client if this is rendered impossible by a circumstance not attributable to any fault of SB, and which is not his responsibility under the law, a legal act or generally accepted practice.
- In these terms and conditions force majeure is understood to mean everything the law and jurisprudence understand by this plus any external causes, foreseen or unforeseen that SB cannot influence but which prevent SB from meeting his obligations. This includes strikes in the companies of SB or third parties. SB shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the contract impossible occurs after SB should have fulfilled his obligation.
- SB can suspend his contractual obligations during the period the force majeure lasts. lf this period lasts longer than two months, either party is entitled to terminate the contract without any obligation to pay damages to the other party.
- Insofar as SB has partially fulfilled his contractual obligations at the time the force majeure occurs or will be able to fulfil them, and if the fulfilled obligations or obligations yet to be fulfilled have separate value, SB is entitled to separately invoice the parts fulfilled or to be fulfilled. The Client is obliged to settle this invoice as if it were a separate contract.
Article 10. Payment
- Payment shall always be made within 14 days of the invoice date, in a manner specified by SB, unless otherwise agreed in writing by SB. SB has the right to invoice periodically.
- lf the Client defaults in the timely payment of an invoice, the Client shall be in default by law. In that case the Client shall owe an interest of 2% per month, unless the statutory interest is higher, in which case the statutory interest is owed. The interest on the amount due will be calculated from the moment the Client is in default until the moment of payment of the full amount owed.
- SB has the right to use the payments made by Client first to the reduction of the costs, subsequently to the reduction of the interest due and finally to the reduction of the principal amount and accrued interest. SB can refuse an offer of payment, without being in default, if the Client indicates a different allocation order of the payments. SB can refuse full redemption of the principal amount, if the accrued interest and recovery costs are not paid at the same time as well.
- The Client is never entitled to deduct the amount due to SB from amounts owed to Client. Objections to the amount of an invoice do not suspend the payment obligation. Nor is the Client who does not have the right to appeal to section 6.5.3 (Articles 231 to 247 of Book 6 BW; Dutch Civil Code) entitled to suspend the payment of an invoice for any other reason.
- lf the Client is in default or fails to fulfil his obligations (in time), all reasonable costs incurred in obtaining payment out of court shall be charged to the Client. The extrajudicial costs shall be calculated on the basis of what is common under Dutch recovery practice. If, however, SB has made higher recovery costs which were reasonably necessary, the actual recovery costs shall be charged to Client. Client shall also be liable for any interest on the recovery costs.
Article 11. Reservation of property
- SB offers a service via a subscription and does not transfer any property rights concerning goods or services to the client, unless expressly agreed upon otherwise. If agreed otherwise the goods or services delivered by SB under the contract shall remain the property of SB until the Client has properly met all contractual obligations resulting from the contract or contracts.
- The goods or services rendered falling under the reservation of property provision in article 1 shall not be sold to third parties and must never be used as means of payment. The Client is not authorized to pawn or mortgage the object of reservation of property in any way.
- The Client shall always do everything that can be reasonably expected of him to safeguard the property rights of SB. lf third parties seize the goods delivered under retention of title or want to establish or exercise rights on them, the Client is obliged to notify SB thereof immediately. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against damages resulting from fire, explosion and water, as well as theft and to produce for inspection the insurance policy at first request of the SB. In case of insurance payouts by the insurance company SB is entitled to these payments. The Client commits himself to the SB in advance to cooperate with all that is necessary or shall become necessary or desirable in this context.
- In case SB wishes to practise his ownership titles as indicated in this Article, the Client grants unconditional and irrevocable advance permission to SB and third parties designated by SB to enter all places where assets of SB are located and to take these back.
Article 12. Guarantees
- SB offers services provided “as-is” and “as available”.
- SB will do its upmost to deliver high quality of services to the clients. However SB explicitly does not guarantee:
- the suitability of the provided services or objects for the purposes of the Client;
- the accuracy of the information provided by third parties, including the Client;
- that the provided services or objects meet the expectations of the Client.
- that the provided services or objects will be available at all times, uninterrupted, timely, secure, accurate, reliable, error-free, free of viruses or malware.
- SB does not guarantee objects or services to be delivered by SB unless otherwise agreed in writing.
- lf a written guarantee given by SB concerns an object produced by a third party, then the guarantee is limited to that provided by the producer of the good, unless otherwise specified.
- Any form of guarantee (separately agreed on in writing) shall expire if a defect is caused by or results from improper or inappropriate use or use after the expiration date, improper storage or maintenance by the Client and / or third parties if, without written permission of SB, the Client or third parties have made changes to the object or have tried to make changes to the object, other objects have been attached that should not have been attached or if they have been processed or adapted in a way other than prescribed. The Client is not entitled to guarantee either if the defect is caused by or arises from circumstances the SB cannot influence.
- Contrary to the statutory expiration periods, the expiration period of all claims and defences against SB and third parties involved in the performance of a contract by SB shall be one year.
Article 13. Limited liability
- Should SB be liable, this liability is limited to what has been laid down in this provision.
- SB is not liable for damages of any kind resulting from incorrect or incomplete data supplied by or on behalf of the Client. SB is also not liable for damages of any kind resulting from incorrect use of the services or objects provided by SB.
- If SB should be liable for any damages, the maximum of this liability shall be restricted to the amount of the invoice of the order, at any rate to that part of the order to which the liability relates and insofar as this invoice or relevant part thereof has been remitted by Client.
- In any case, SB’s liability is always limited to the amount paid by his insurer. This provision however does not obligate SB to insure itself for liability claims.
- SB is solely responsible for direct damage.
- By direct damage is exclusively understood the reasonable costs incurred to establish the cause and extent of the damage, insofar as the estimation relates to damage as understood in these terms and conditions, any reasonable costs incurred to make any poor performance of SB meet the contract, inasmuch as these can be attributed to the SB, and reasonable costs incurred to prevent or limit the extent of the damage as defined in these terms and conditions. SB shall never be liable for indirect damages, including consequential damage, loss of profit, lost savings and damages due to business interruption.
- The limitations of liability set out in this article shall not apply if the damages are due to intent or gross negligence of SB or his subordinates managers.
Article 14. Disclaimer
The Client indemnifies the SB against any claims of third parties who suffer damages in connection with the implementation of the contract and the cause of which is attributable to others than SB. lf Client should be addressed by third parties for that reason, the Client is held to assist the SB both outside and in law and to do immediately what may be expected of him in such a case. Should the Client fail to take adequate measures, then SB, without notice, is entitled to take measures itself. All costs and damages on the part of SB and third parties will exclusively be at the risk of Client and will be charged fully to the Client.
Article 15. lntellectual property
- SB reserves the rights and powers to which he is entitled under the Copyright Law and other intellectual property laws and regulations. SB has the right to use any additional knowledge acquired on his part during fulfillment of a contract for other purposes, provided no strictly confidential information of the Client is shared with third parties.
- All intellectual property rights relating to the Services, including featured and non-featured content, are owned by SB.
- The Client shall not:
- sell, license (or sub-license), lease, assign, transfer, pledge and / or share with any other party any part of the Services provided by SB and / or it’s rights under this General Terms;
- transfer, distribute, copy, make available to the public any part of the Services provided by SB;
- modify, translate, reverse engineer, make any attempt to discover the source code of any part of the Services and / or the associated software and / or create derivative works thereof.
- By making use of the service of SB the clients grants SB an international license, non-exclusive, transferable, sub licensable license to use, copy, distribute, make available to the public, broadcast and edit the data provided by the Client through the services, for the purpose of operating the service and other purposes deemed necessary or useful to or by SB, without the obligation to pay royalties and/or other compensation. SB can store, process, present, and (re)use the data, for example for (but not limited to) further analysis, learning and improving the services of SB.
- SB shall not process any data provided by the Client without lawful basis if SB knows or reasonably foresees that the data concerns personal data as referred to in the General Data Protection Regulation.
Article 16. Applicable law and disputes
- To all legal relationships in which SB is a party, Dutch law shall exclusively be applicable, also in those cases when a contract is executed wholly or partially abroad or if the party involved in the legal relationship has his domicile abroad. The applicability of the Vienna Sales Convention shall be excluded.
- The sole jurisdiction is at the domicile of the SB, except where mandatory law prescribes otherwise. Nevertheless SB has the right to submit the dispute to a legally competent judge.
- Parties shall only appeal to court after they have made the utmost effort to settle a dispute mutually.
Article 17. Other
- These conditions have been deposited at the Chamber of Commerce.
- The last registered version or the version valid at the time the legal relation with the SB was established shall always apply.
- The Dutch text of these general terms and conditions is always decisive in the interpretation of these terms and conditions.