1. General

1.1 Introduction

Locktech, registered in the trade register in Rotterdam under number 24461487, specialises in automation of and consultancy in safety management systems, such as Lock Out & Tag Out

 

1.2 Applicability of the general terms and conditions

These terms and conditions apply to every offer, quotation and agreement between Locktech, hereinafter referred to as “Contractor”, and the Other Party, hereinafter referred to as “Client” to which Contractor has declared these terms and conditions applicable, insofar as the parties have not deviated from these terms and conditions explicitly and in writing and must be signed and returned to the Contractor upon approval of the offer.

 

1.3 Extension of application of general terms and conditions

These general terms and conditions are also written for the employees of the Contractor and its directors.

 

1.4 Applicability of purchase conditions or other conditions

If one or more provisions of these general terms and conditions at any time, wholly or partially, are void or annulled, the remaining provisions in these general conditions will remain in force. In this event, the Contractor and the Client will agree on the replacement of the void or annulled provisions with new provisions, while retaining the purpose and scope of the original provisions as much as possible.

 

1.5 Compliance with the conditions

If the Contractor does not require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply or that, to any degree, the Contractor would lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.

 

2. Offers and Confirmations

 

2.1 Offers

Offers are without obligation. Prices quoted may be subject to change due to unforeseen changes in the work. The prices stated in the quotation are exclusive of VAT and other government levies. Rates and offers quoted will not automatically apply to future assignments

 

2.2 Writing/typing errors

The Contractor cannot be held to the quotes or offers if the Client can reasonably understand that the quotes or offers, or any part thereof, contain a manifest error or typographical error.

 

 

 

 

 

2.3 Written confirmation

The Client must confirm approval of the offer in writing to the Contractor. If the Client fails to do so, but nevertheless agrees to the Contractor commencing performance of the assignment, the content of the quotation will be considered as agreed. Further verbal agreements and clauses only bind the Contractor after they have been confirmed in writing by the Contractor.

 

3. Agreement

 

3.1 Installation by Locktech

The Contractor will ensure the delivery of the services and/or materials as specified in the order confirmation to the Client and the Contractor will endeavour to perform these services within the agreed period

 

3.2 Duration of the agreement

The agreement between the Contractor and the Client is entered into for a definite period of time and commences at the time the order confirmation is sent by the Contractor and ends 10 working days after completion of the installation or if agreed otherwise after the official handover at the Contractor’s instructions.

 

3.3 Changes to the agreement

If, during the performance of the agreement, it becomes apparent that it is necessary to modify or supplement the agreement in order to ensure its proper execution, the parties will consult in a timely fashion about modifying the agreement. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Client, of the competent authorities etc., is changed and the agreement is thereby qualitatively and/or quantitatively changed, this may have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. The Contractor will provide a quote for this purpose in advance as much as possible. Due to a modification of the agreement, the original performance period may be changed. The Client accepts the possibility of modification of the agreement, including a change in the price and performance period.

 

3.4 Performance with a modified agreement

If the agreement has been modified, including additions, the Contractor is entitled to perform this amendment if the Client has agreed to the price stated for the performance and other conditions, including the time to be determined for the performance of this amendment. Not performing the modified agreement, or not performing it immediately, does not give rise to any breach of contract by the Contractor and will not be grounds for the Client to terminate the agreement. Without being in default, the Contractor may refuse a request for modification of the agreement, if this could have consequences in a qualitative and/or quantitative respect for the work to be done or items to be delivered in that context.

 

 

  1. Delivery

 

4.1 Delivery

The Contractor will deliver all materials to the Client’s premises

 

4.2 Term of delivery

Terms quoted by the Contractor for completion of the package are indicative only, unless the nature or content of the agreement requires otherwise. The Contractor is only in default, including in the case of a specified period for installing the package, after the Client has notified the Contractor by registered letter of default and compliance within the reasonable period specified in the notice of default is not forthcoming. The Contractor must be given a reasonable term to then fulfil the agreement. If the Contractor requires information from the Client for the performance of the agreement, the performance period does not commence until after the Client has made it available correctly and completely to the Contractor.

 

4.3 Work by third parties

The Contractor reserves the right to subcontract third parties for parts of the work.

 

4.4 Non-performance

In the event of non-performance, please inform the Contractor in writing as soon as possible, but in any case within ten working days after the performance or, if otherwise agreed, after the official handover at the Contractor’s instructions, failing which the Client is deemed to have fully accepted the results of the assignment.

 

 

  1. Obligations of the Client

 

5.1 Granting of rights

The Client is obliged to do all that is reasonably necessary or required to enable timely and correct delivery by the Contractor, in particular by acquiring rights in time to install and register external software on the company computer.

 

5.2 Providing access to the site

The Client is obliged to do all that is necessary to provide the Contractor with access to the site by arranging any required introductory training courses

 

5.3 Staff training (if applicable)

The Client is obliged to do all that is necessary to enable its staff to attend the training sessions during the morning or afternoon shift, provided that this is not possible due to circumstances such as major disruptions, shutdowns or incidents. Scheduled training sessions that cannot commence for a reason other than the aforementioned circumstances will be deducted from the number of training sessions still outstanding or will be charged if only one training session is taken.

 

 

  1. Intellectual Property Rights

 

6.1 Copyright and industrial property

Unless otherwise agreed, all intellectual property rights arising from the assignment – including patent rights, design rights and copyright – belong to the Contractor. In as far as such a right may only be extended by instrument of deposit or registration, only the Contractor is authorised to do so.

 

 

6.2 Investigation into the existence of rights

Unless otherwise agreed, the assignment does not include the investigation of the existence of patent rights, trademark rights, drawing or design rights, copyrights and portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for the Client.

 

6.3 Intellectual property

The Contractor retains the rights and privileges that are granted to it pursuant to the Copyright Act and other intellectual property laws. The Contractor has the right to use the knowledge acquired during the performance of an agreement for other purposes, insofar as no strictly confidential information of the Client is given to third parties.

 

 

  1. Property Rights

 

7.1 Retention of title

All goods delivered by the Contractor under the agreement remain the property of the Contractor until the Client has properly fulfilled all obligations arising from the agreement(s) concluded with the Contractor.

 

7.2 Resale/pledging property rights

Goods delivered by the Contractor that, as a result of paragraph 1, fall under the retention of title may not be resold and may never be used as a means of payment. The Client is not authorised to pledge or otherwise encumber in any other way items falling under retention of title.

 

7.3 Securing property rights

The Client must always do all that may reasonably be expected to secure the property rights of the Contractor

 

7.4 Attachment by third parties

If third parties make an attachment on the goods delivered under retention of title or want to attach or exercise rights thereon, the Client is obliged to immediately notify the Contractor thereof.

 

7.5 Property of the contractor

Unless otherwise agreed, the designs or (electronic) files created by the Contractor within the framework of the assignment remain the property of the Contractor, regardless of whether these have been handed over to the Client or to third parties.

 

 

  1. Use

 

8.1 Use

The Locktech danger labels are only intended for use in the supplied thermal transfer printer, unless otherwise agreed in writing.

 

8.2 Extended use

The Client is not entitled to extended use of the Locktech danger labels or to use these in a different way than agreed and/or to duplicate them (without the written permission of the Contractor). In the event of extended or different use on which no agreement was reached, including any amendment, destruction or infringement on the provisional or final design, the Contractor will be entitled to compensation for infringement of his/her rights of at least three times the agreed fee, or a fee that is reasonably and fairly proportional to the infringement committed, without prejudice to the Contractor’s right to claim reimbursement of the damage incurred.

 

8.3 Changes

Unless otherwise agreed, the Client is not permitted to make changes to the Locktech danger labels or place them without written permission from the Contractor.

 

8.4 Own Promotion

The Contractor may use the design at its discretion for its own publicity or promotional purposes, with due observance of the Client’s interests.

 

 

  1. Payment for Additional Work

 

9.1 Payment for additional work

In addition to the agreed payment, the costs for additional training sessions and/or troubleshooting, which fall outside the agreement described in Article 1, paragraph 1, are charged separately by the Contractor, based on the hourly rates normally applied by the Contractor. Exceptions to the troubleshooting are the standard warranty provisions of the printer and/or any contracts concluded via a Service Level Agreement.

 

 

 

 

 

  1. Payment

 

10.1 Payment obligation

Payment term is 30 days after invoice date. If after the expiry of this period the Contractor has not yet received (full) payment, the Client will be in default and will owe interest equal to the statutory interest. All costs incurred by the contractor in connection with overdue payments, such as costs of litigation and judicial and extrajudicial costs, including the cost of legal assistance, bailiffs and debt collection agencies, will be borne by the Client. The extrajudicial costs will be at least 10% of the invoice amount, with a minimum of € 1000. excl. VAT.

 

10.2 No discount or compensation

The Client will make the payments due to the Contractor without discount or compensation

 

10.3 Objection

Objections to the amount invoiced do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3 (Articles 231 through 247 of Book 6 Dutch Civil Code) is not entitled to suspend the payment of an invoice for any other reason.

 

 

10.4 Periodic invoicing

The Contractor reserves the right to invoice in the interim.

 

 

  1. Early termination and dissolution of the agreement

 

11.1 Termination of the agreement by the Client

If the Client cancels the agreement earlier, they must, in addition to compensation, fulfil the payment obligation and pay the costs incurred with regard to the work performed up to then.

 

11.2 Dissolution of the agreement by the Contractor

If the contract is dissolved earlier by the Contractor due to an attributable shortcoming in the fulfilment of the agreement by the Client, the Client must, in addition to compensation, pay the payment obligation and the costs incurred with regard to the work performed up to that time. Any behaviour of the Client on the basis of which the Contractor can no longer reasonably be expected to complete the assignment, is in this context also regarded as an attributable shortcoming.

 

11.3 Dissolution of the agreement by the Client

In the event of early dissolution by the Client due to imputable failure in the fulfilment of the obligations by the Contractor, the performances already delivered and the related payment obligation will not be subject to cancellation, unless the Client proves that the Contractor is in default with regard to those performances. Amounts invoiced by the Contractor prior to the cancellation for what the Contractor has already properly performed or delivered in the implementation of the Agreement remain payable in compliance with the previous sentence and become immediately due at the time of the cancellation.

 

11.4 Compensation

Compensation referred to in the preceding two paragraphs of this Article will comprise at least the costs arising from obligations undertaken by the Contractor in its own name with third parties for the performance of the work commissioned, as well as at least 30% of the balance of the fee that the Client would owe the Contractor if the work commissioned were fully completed.

 

11.5 Bankruptcy

Both the Contractor and the Client have the right to immediately dissolve the agreement in whole or in part in the event of the other party’s bankruptcy or suspension of payment.

 

 

  1. Warranties and indemnifications

 

12.1 Copyright owner

The Contractor guarantees that the design supplied to the Client has been made by it or on its behalf and, if the design is protected by copyright, that the Contractor is the author within the meaning of the Dutch Copyright Act (Auteurswet) and as the copyright owner has control over the work.

 

12.2 Disclaimer for claims regarding the use of the design

The Client indemnifies the Contractor or persons engaged by the Contractor for the assignment against all claims from third parties arising from the applications or use of the result of the assignment.

 

12.3 Warranty application in the Netherlands

The goods to be delivered by the Contractor comply with the usual requirements and norms that can be reasonably set at the time of delivery and for which they are intended under normal use in the Netherlands. The warranty stated in this article applies to goods intended for use within the Netherlands. For use outside the Netherlands, the Client itself must verify whether the use thereof is suitable for the use there and whether it complies with the conditions imposed on it there. In that case, the Contractor may set other warranty and other conditions with regard to the services and/or materials to be supplied.

 

12.4 Warranty period

The warranty intended in paragraph 3 of this article is valid for a period of 1 year after delivery, unless otherwise deriving from the nature of the delivery or otherwise agreed between the parties. If the warranty extended by the Contractor concerns an item produced by a third party, the warranty is limited to that extended by the manufacturer of the item unless stated otherwise.

 

12.5 Lapsed warranty

Any form of warranty will lapse if a defect has arisen as a result of inexpert or improper use thereof, contrary to what is described in the Locktech manual or use of danger labels other than the Locktech danger labels, improper storage or maintenance thereof by the Client and/or third parties if, without the written consent of the Contractor, the Client or third parties have made changes to the item or have attempted to make changes, have attached items to it that should not be attached to it or if these have been changed or processed in a manner other than prescribed. The Client also has no claim to warranty if the defect is caused by or resulting from circumstances that the Contractor cannot influence, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) etc.

 

12.6 Complaints and/or defects

The Client is obliged to examine (or have examined) what has been delivered to it, immediately it is made available to the Client or as soon as the relevant work has been completed. In addition, the Client should investigate whether the quality and/or quantity of what has been delivered corresponds with what has been agreed and meets the requirements agreed upon by the parties in this regard. Any visible defects must be reported to the Contractor in writing within seven days after delivery. Any non-visible defects must be reported immediately, but in any case no later than within fourteen days, to the Contractor in writing. The report must include as detailed a description of the defect as possible, so that the Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint or have it investigated.

 

12.7 Payment obligation in the event of a complaint

If the Client makes a complaint within the set timeframe, this does not suspend its payment obligation. In that case, the Client remains obliged to accept and pay for any other items ordered.

 

12.8 Retrospective complaints

If a defect is reported at a later date, the Client will no longer be entitled to repair, replacement or compensation, provided this is subject to either the applicable factory warranty or any concluded Service Level Agreement.

12.9 Return with complaint

If it is established that an item is defective and a claim is made within the set timeframe, the Contractor will, within a reasonable term after return thereof or, if return is not reasonably possible, after written notice regarding the defect by the Client, replace or arrange for repair thereof or provide alternative compensation to the Client, at the Contractor’s discretion. In the event of replacement, the Client is obliged to return the replaced item to the Contractor and to transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.

 

12.10 Unfounded complaints

If a complaint appears to be unfounded, the related costs incurred, including the investigation costs incurred by the Contractor as a result, will be charged in full to the Client.

 

12.11 Expiration of warranty period

After the warranty period has expired, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Client, unless a Service Level Agreement is made.

 

12.12 Limitation period

By way of derogation from the statutory limitation periods, the limitation period of all claims and defences against the Contractor and third parties involved by the Contractor in the performance of a contract is one year.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. Liability

 

13.1 Liability

The Contractor cannot be held liable for:

  1. errors or defects in materials supplied by the client.
  2. misunderstandings, errors or shortcomings with regard to the performance of the agreement if this is due or caused by acts of the Client, such as failure to comply on time or non-compliance with the provisions of Article 5.
  3. errors or shortcomings of third parties engaged by or on behalf of the Client.
  4. defects in quotations from suppliers or for exceeding quotations from suppliers.
  5. errors or defects in the databases created by staff and therefore incorrectly printed danger labels.
  6. consequential damage due to incorrectly printed danger labels based on errors or defects in the databases created by staff.
  7. consequential damage due to errors and/or defects as a result of not following the procedure as described in the Locktech manual.
  8. malfunctions and/or error messages due to adjustments to Excel files and/or label templates, without first informing the Contractor.
  9. malfunctions, errors and/or consequential damage as a result of the use of danger labels other than the Locktech danger labels.
  10. system malfunctions or improper functioning of the system due to software updates by the IT department with regard to Microsoft Excel and Microsoft Windows. The Contractor shall instruct the Client as clearly as possible with regard to the points of attention for IT with regard to the computer that will be used for the safety management system. No rights can be derived from these instructions.

 

13.2 Limitation of liability

Except in the event of intent or gross negligence on the part of the Contractor, the liability of the Contractor is in any case always limited to the amount paid out by its insurer in the relevant case.

 

13.3 Liability for incorrect and/or incomplete data

The Contractor is not liable for damage of any nature, due to incorrect and/or incomplete data provided by the Client.

 

13.4 Expiration of liability

10.4 Any and all liability will expire twelve months from the date of completion of the work commissioned.

 

13.5 Copies of materials

The Client is obliged, if reasonably possible, to keep copies of materials and data provided by it until the order has been fulfilled. If the Client fails to do so the Contractor cannot be held liable for any damage or loss that would not have occurred if such copies had existed.

 

 

 

 

 

 

  1. Force Majeure

 

14.1 Force majeure

The Contractor is not obliged to fulfil its obligation to the Client if it is being hampered by circumstances beyond its control, by law, a legal act or generally accepted views.

 

14.2 Definition of force majeure

Force majeure is understood in these general terms and conditions, in addition to what is understood in law and jurisprudence, to include all external causes, foreseen or unforeseen, over which the Contractor cannot exercise any influence but due to which the Contractor is not able to fulfil the obligations. This includes strikes in the company of the Contractor or third parties. The Contractor also has the right to rely on force majeure if the circumstance that hinders (further) fulfilment of the agreement occurs after the Contractor should have fulfilled the commitment.

 

14.3 Termination as a result of force majeure

The Contractor may suspend all obligations under this contract during the period of force majeure. If this period continues for longer than two months, either of the parties are entitled to dissolve the agreement without any obligation to pay compensation for any loss suffered by the Client.

 

14.4 Partial or full compliance with obligations during force majeure

To the extent that the Contractor has partially fulfilled or will be able to partially fulfil the obligations under the agreement when the force majeure begins, and the fulfilled or to be fulfilled part has independent value, the Contractor is entitled to separately invoice the fulfilled or to be fulfilled part. The Client is required to pay this invoice as if it were a separate agreement.

 

 

  1. Other provisions

 

15.1 Transfer to third parties

The Client will not be permitted to transfer or assign to third parties any of the rights under an agreement concluded with the Contractor, except in the event and as part of a transfer of the Client’s entire business.

 

15.2 Confidentiality

Parties must keep confidential any and all facts and circumstances that come to their knowledge in the context of the work commissioned. The same obligation of confidentiality in respect of such facts and circumstances must be imposed on any third parties engaged in the performance of the work commissioned.

 

15.3 Headings

The headings in these General Terms and Conditions have been included for easy reference only and are no part of these Terms and Conditions.

 

15.4 Dutch law

All agreements between the Contractor and the Client are governed by Dutch law. The court that has the power to hear and decide any dispute between the Contractor and the Client will be the court having jurisdiction in the district where the Contractor has its registered office or the court having jurisdiction pursuant to the law, at the Contractor’s discretion.