Article 1 – Definitions and scope
1. In these general terms and conditions, the following definitions shall apply:
a. Contractor: the private limited company nC Group BV, having its registered office and place of business in Wormerveer and registered with the Chamber of Commerce under number 63741342 trading under the trade name ‘NC Marine’;
b. Business client: a consumer or a natural person or a legal entity, which in the exercise of its profession or business has commissioned nC Group BV to perform work;
c. Consumer: A natural person or an association of owners, not acting in the exercise of a profession or business, who has commissioned nC Group BV to perform work;
d. Client: Business Client and Consumer as referred to in the above definitions b and c.
e. Agreement: all agreements made between the business client or consumer and nC Group BV regarding the performance of work by nC Group BV.
f. Work: The total of the work agreed upon between the consumer and nC Group BV and delivery of the products to be processed for that purpose.
2. These general terms and conditions apply, in addition to or in derogation of the Civil Code, to all agreements concluded between nC Group BV and business client or consumer. The parties have agreed that these terms will be considered a permanent part of the agreements. Deviation from the provisions is only possible in writing.
3. Any general terms and conditions used by a business client shall expressly not apply to agreements concluded with nC Group BV, unless nC Group BV has agreed to such terms and conditions in writing. If the client’s terms and conditions do apply at any time, these general terms and conditions shall additionally apply, insofar as the contents of these terms and conditions do not conflict with the client’s terms and conditions.
Article 2 – Offer and formation of agreement
1. The offer shall include a description of the work to be performed and the materials to be supplied in sufficient detail to permit proper evaluation of the offer.
2. All offers of nC Group BV are without obligation unless dated and can therefore be revoked after acceptance by it if this is done without delay.
3. Verbal agreements and stipulations shall not bind nC Group BV until confirmed by it in writing.
4. The provisions of paragraph 3 of this article shall not affect the possibility of either party to prove the formation of the contract by other means.
5. The offer provides insight into the price and/or the applicable pricing method: contracting, guide price or direction.
a. Under the “contracting” pricing method, the parties agree on a fixed amount (contract price) for which the work will be performed.
b. Under the “guide price” pricing method, nC Group BV will make the most accurate estimate possible of the cost of the work.
c. In the case of the “direction” pricing method, nC Group BV shall provide a precise specification of the price factors (including the hourly rate and unit prices of the materials required).
6. If neither party confirms the agreement in writing and nC Group BV has commenced performance of the agreement with the consent of the client, the client shall be deemed to have provided the agreement in accordance with the quotation.
7. Agreements can only be entered into on behalf of nC Group BV by persons authorized to do so. Agreements with nC Group BV employees working in the execution of the work are not binding on nC Group BV. At the first request of the client, nC Group BV will indicate who within its company is authorized to enter into agreements.
8. In the case of multiple clients, they are all jointly and severally liable for the fulfillment of contractual obligations.
Article 3 – Prices and price changes
1. The prices quoted by nC Group BV are exclusive of VAT, unless expressly stated otherwise.
2. The prices referred to in paragraph 1 of this article, unless explicitly named, do not include: Parking fees and fees for permit applications.
3. As far as possible, the price shall be determined on the basis of a previously agreed hourly rate or on the basis of a previously agreed fixed amount.
4. If the price was not determined when the agreement was concluded or only a target price was determined, the client shall owe a reasonable price. In determining the price, account shall be taken of the prices usually stipulated by nC Group BV at the time the agreement is concluded and the expectations aroused by it with regard to the probable price.
5. If a guide price was determined, this guide price may not be exceeded by more than 15%, unless nC Group BV has warned the client in as timely a manner as possible of the likelihood of a further overrun, in order to give it the opportunity to reduce or simplify the work as yet. nC Group BV will have to cooperate with such limitation or simplification within reason.
6. Paragraph 5 shall apply mutatis mutandis to contracts for work where the price depends on the time estimated at the time of the contract for the performance of the work.
7. The provisions of this article regarding prices and price changes do not apply to additional work and provisional items.
8. If after the conclusion of the agreement cost-increasing circumstances arise or come to light without being attributable to nC Group BV, nC Group BV shall be able to adjust the agreed price in full or in part to the cost increase, provided that nC Group BV did not have to take the likelihood of such circumstances into account when determining the price.
9. nC Group BV may also adjust the price if the cost increase is the result of incorrect information provided by the client which is relevant for determining the price, unless nC Group BV should have discovered the incorrectness of the information before determining the price.
Article 4 – Execution of the agreement
1. The Client shall ensure that nC Group BV has timely access to the complete specifications, the approvals required for the work (such as permits and exemptions) and the other information required for the work. If the client provides nC Group BV with information, nC Group BV may assume that it is correct and will base its offer on it. Damages resulting from inaccuracy or incompleteness of these data shall be borne by the client.
2. Client is obliged to investigate, and inform nC Group BV in writing of, all relevant circumstances.
3. The client must ensure that activities to be performed by third parties that are not part of the work of nC Group BV are performed in such a way and in such a timely manner that the performance of the work is not delayed as a result.
4. Client shall provide connection facilities for utilities (gas, water, electricity) required for the work. The cost of this and the necessary consumption will be borne by
5. The Client shall invite nC Group BV, insofar as they are held, to attend all construction meetings directly or indirectly related to its work.
6. If it has been agreed that the client will provide the necessary equipment, the client guarantees that it will comply with legal and safety regulations set by the Labour Inspectorate.
7. Business client shall ensure that supply roads are constructed and maintained in such a manner that materials can be brought within working distance of the work at all times in full loads.
8. The personnel of nC Group BV have free access to the toilets and restrooms available at work.
9. Business client shall ensure that the design and execution of the work is such that as a result damage to persons, property and the environment is minimized.
10. Business client shall provide facilities for collection of chemical construction waste.
11. Business client ensures order and safety at work. He also ensures the good condition of the materials to be processed and the equipment provided by him.
12. In case the client is in default with what is described in the previous paragraphs of this article, nC Group BV has the right to suspend the execution of the agreement and to charge the client for the costs resulting from the delay.
13. If the execution of the agreement requires it, nC Group BV has the right to have work performed by third parties.
14. When entering into or executing the agreement, nC Group BV is obliged to warn the client about inaccuracies in the order insofar as it knew or should reasonably have known them. The same applies in the event of defects or unsuitability of items originating from the client, including the substrate on which the client has a work performed, as well as errors and defects in plans, drawings, calculations, specifications or execution instructions provided by the client.
15. The client is obliged to remove all obstacles, as well as to inform nC Group BV of all circumstances that result or may result in nC Group BV not being able to carry out the assignment in the intended time of execution as quickly and effectively as possible, as well as without damage.
16. Client is obliged to compensate nC Group BV for the damage caused by non-compliance with the obligations referred to in the preceding paragraph, caused by it to nC Group BV. The new execution of the work will take place when nC Group BV’s schedule permits.
Article 5 – Time limits and working hours
1. Agreed deadlines, apart from payment deadlines, are never fatal deadlines and in no case give the right to compensation unless agreed in writing.
2. If the implementation period is exceeded, the client shall offer nC Group BV the opportunity to still perform within a reasonable period.
3. If during the execution nC Group BV foresees that the execution period will be exceeded, it shall notify the client, stating the probable reason.
4. If normal working hours are exceeded on working days, when working on Saturdays and on Sundays and public holidays, all this at the request of the client, nC Group BV shall be entitled to charge a surcharge on the agreed prices, which surcharge shall be in proportion to the additional costs arising from this.
5. If nC Group BV and the client disagree on whether weather and/or working conditions may have a negative influence on the work, nC Group BV is entitled not to carry out the work, without any obligation to pay compensation as a result. Should nC Group BV perform the work, at the express request of the client, the performance of the work shall be at the client’s risk and the client shall never be entitled to any compensation should the work have a negative result.
Article 6 – More and less work
1. In the event of additions or changes to the agreed work desired by the client, nC Group BV can only claim an increase in the price if it has informed the client in good time of the necessity of a resulting price increase, unless the client should have understood that necessity by itself.
2. Changes in the work shall in any case result in more or less work if:
a. there is a change in design or specifications;
b. the information provided by the client does not reflect reality;
c. deviate from estimated quantities by more than 10%;
d. the normal working time, is exceeded by more than 10%.
4. Additional work is calculated based on the value of the price determinants in effect at the time the additional work is performed. Less work shall be settled on the basis of the value of the price determinants applicable at the time the contract was concluded.
5. If during the execution unforeseen circumstances appear that have not been communicated by the client in writing and also were not visually perceptible to nC Group BV without investigation at the time of recording the work on site, nC Group BV shall be entitled to adjust the price in connection with the additional costs arising from these unforeseen circumstances. If the client does not agree to this, nC Group BV is authorized to dissolve the agreement by registered letter with immediate effect. Business client is in that case not entitled to claim any damages, nC Group BV is however entitled to proceed to a settlement under Art. 7:764 (2).
6. If the balance of the reduced work exceeds that of the additional work, nC Group BV may charge the client 10% of the difference of the balances in the final invoice. This provision does not apply to reduced work resulting from a request by nC Group BV.
Article 7 – Early termination
1. The consumer is entitled at any time to terminate all or part of the agreement in writing, stating the reason for termination.
2. The agreement can only be terminated prematurely by business client due to culpable breach of contract by nC Group BV, exclusively by registered letter stating the reason for termination.
3. Upon premature termination of the agreement by the client and upon premature termination by nC Group BV due to culpable acts of the client, the client is obliged to pay nC Group BV:
a. the price applicable to the entire work, less any savings for nC Group BV resulting from the cancellation, against delivery by nC Group BV of the work already completed.
b. in the absence of a contract price, 125% of the work invoiced and/or to be invoiced that had already been performed at the time of termination.
4. The above is without prejudice to nC Group BV’s right to claim full damages.
Article 8 – Delivery
1. If nC Group BV has given notice that the work is ready for delivery and the client does not inspect the work within fourteen days and accepts it with or without reservation or refuses to accept it with indication of defects, the client shall be deemed to have tacitly accepted the work. After acceptance, the work is considered completed.
2. The work is considered completed when:
a. client has approved the work;
b. the work has been put into use by the client. If client takes a part of the work into use then that part is considered delivered;
c. nC Group BV has notified the client in writing that the work has been completed and the client has not indicated in writing within 14 days of the notification whether or not the work has been approved;
d. client does not approve the work on the grounds of minor defects or missing parts that can be repaired or redelivered within 30 days and do not prevent the work from being put into service.
3. If the client does not approve the work, it is obliged to notify nC Group BV of this in writing, giving reasons.
4. After completion, the work is at the client’s risk. Therefore, he shall remain liable for the price regardless of any destruction or deterioration of the work due to a cause not attributable to nC Group BV.
Article 9 – Complaints and rectification of defects
1. nC Group BV is released from liability for defects that the client should reasonably have discovered at the time of delivery, but failed to report.
2. If the work shows defects after delivery for which nC Group BV is liable, the client must give nC Group BV the opportunity to remove the defects within a reasonable period of time.
3. Visible defects must be reported in writing to nC Group BV within seven days of completion of the work.
4. The Client may demand that nC Group BV remedy the defects within a reasonable period of time, unless the costs of remediation would be disproportionate to the Client’s interest in remediation rather than compensation.
5. Other defects must be reported in writing within a reasonable time, but no later than seven days, after they were discovered or reasonably should have been discovered.
6. After the expiration of the deadlines mentioned in this article, the right to invoke the defect expires.
7. The filing of one or more claim(s) does not cancel the client’s obligation to pay.
8. During the execution of the work nC Group BV is expressly permitted to deviate from a previously issued advice, provided plan or drawing, as this advice, provided plan or drawing is an execution plan prepared before the start of the work, and during the work it may sometimes be appropriate to make changes.
Article 10 – Limitation and forfeiture
1. A consumer’s legal claim for a defect in the completed work shall lapse two years after the consumer has protested or could reasonably have known of the defect.
2. Any claim for compensation by the consumer shall lapse if it has not been notified in writing to nC Group BV within one month after the discovery of the damage and if it has not been brought before the court within two years from that time.
3. The right of complaint for a business client shall lapse one year after the completion of the work or delivery of the work.
Article 11 – Liability
1. If certain parts of the agreement are fulfilled by third parties, nC Group BV is not liable for these parts and for the actions of these third parties, if and insofar as this does not take place under its direction.
In the event of defects for which it is liable, nC Group BV must be given the opportunity by the client to remedy these defects or to limit or eliminate the damage resulting from these defects.
3. nC Group BV shall not be liable for indirect damage of the client or third parties, including consequential damage and trading loss.
4. nC Group BV is not liable for damages due to intent or gross negligence of its non-managerial subordinates.
5. nC Group BV is not liable for damages resulting from exceeding the execution period.
6. The client indemnifies nC Group BV against all successful claims of third parties in respect of work carried out by nC Group BV and/or goods delivered as a result of which that third party may have suffered damage, irrespective of the cause or time at which that damage was suffered.
7. In case of liability of nC Group BV, nC Group BV is never obliged to compensate a higher amount than 25% of the damage suffered with a maximum of the invoice amount (excluding VAT) of the work in question as a result of which the damage would have been caused. In any event, nC Group BV’s liability shall at all times be limited to the amount that its liability insurer shall pay out in a given case, whereby multiple causes shall be considered jointly as one event causing damage.
8. If the client has insured any risk related to the agreement, it shall be obliged to indemnify nC Group BV against this risk.
9. Any claim for compensation by the business client shall lapse if the claim has not been made known in writing to nC Group BV within one month after the damage or defect has been discovered or should reasonably have been discovered, and if it has not been brought before the court within one year from that time.
10. nC Group BV shall not be liable for any damages resulting from the fact that nC Group BV has relied on incorrect and/or incomplete information provided by the client.
11. Client bears the risk of damage caused by defects in materials made available by it or used at its request, unless nC Group BV has fulfilled its warning obligation within the meaning of article 7:760 jo. 7:754 BW violated.
12. Client shall bear the risk of damage to all materials, parts or tools located on the work.
Article 12 – Force majeure
1. Force majeure means: circumstances that permanently or temporarily prevent performance of the agreement and which cannot be attributed to nC Group BV. This includes adverse weather conditions such as (but not limited to) snow and frost, staff shortages at nC Group BV, strikes in other companies, wild or organized strikes in the company of nC Group BV, a general lack of necessary raw materials, unforeseeable stagnation at suppliers, general transport problems and government measures.
2. nC Group BV shall also be entitled to invoke force majeure if the circumstance causing force majeure occurs after nC Group BV should have fulfilled its commitment.
3. In case of force majeure, nC Group BV has the right to suspend its obligation. If the impediment to performance due to force majeure continues for more than one month, both parties are authorized to dissolve the contract, without any obligation to pay damages in that case. If nC Group BV has already partially fulfilled its obligations when the force majeure occurs, nC Group BV is entitled to a proportional part of the established price based on the work already performed and costs incurred. This does not apply if this part of the agreement has no independent value.
Article 13 – Payment and interest
1. Payment shall be made on the basis of 30% at the time of order and 70% within fourteen days of final invoice date. After the expiration of these fourteen days, the client shall be in default and all claims of nC Group BV against the client shall become immediately due and payable.
2. Client shall owe interest of 1.5% per month on the amount due from the moment of default as referred to in paragraph 1.
3. In case payment in instalments has been agreed upon and the client is in default with the payment of an instalment, nC Group BV shall, without prejudice to its other rights, be entitled to suspend the work until the client has fulfilled all its due obligations.
4. Client shall pay without discount or set off against any claim, disputed or otherwise, of client against nC Group BV.
5. In case of liquidation, bankruptcy or suspension of payment of client, or in case client has otherwise run into payment difficulties and/or client converts his company into another legal form, or transfers it to a third party, or transfers the place of his establishment and/or his residence abroad, the obligations of client shall be immediately due and payable.
6. Each payment shall always serve to settle in the first place all interest and costs owed and in the second place the oldest outstanding invoices, regardless of whether client states at the time of payment that it relates to a later invoice.
7. nC Group BV is entitled to recover from the client all costs – both in and out of court – that it has to incur to satisfy its claim, whereby the extrajudicial costs in relation to the business client are set in advance at 15% of the total amount due with a minimum of € 300.
Article 14 – Dissolution of the agreement
1. The claims of nC Group BV against the client shall be immediately due and payable in the following cases:
a. if client does not, not properly or not timely comply with any obligation arising from the agreement;
b. if after the conclusion of the agreement nC Group BV learns of circumstances that give good reason to fear that the client will not comply with its obligations;
c. if when concluding the agreement nC Group BV asked the client to provide security for performance and this security is not provided or is insufficient.
2. In the aforementioned cases, nC Group BV is entitled to suspend the further execution of the agreement or to dissolve the agreement and to claim compensation for costs, damages and interest, as well as to reclaim the goods that have not yet been paid for but have been delivered in execution of these agreements.
Article 15 – Property and copyrights.
1. All originals of drawings, sketches, specifications, budgets, estimates, reports and other documents produced by nC Group BV in the performance of the agreement shall remain its property, regardless of whether they have been made available to the client or to third parties.
2. nC Group BV shall have the right, to the exclusion of all others, to realize, publish and reproduce its designs, sketches, photographs and all other representations of its design as referred to in the Copyright Act 1912 or in the Benelux Act, concerning drawings and models, irrespective of whether they have been made available to the client or to third parties.
3. The client is not permitted to repeat the execution of a design, or part thereof, of nC Group BV without the express permission of nC Group BV.
Article 16 – Retention of title.
1. Until full payment of all claims arising from the agreement, including interest and costs, goods delivered by nC Group BV shall remain the sole property of nC Group BV.
2. Until the time of full payment, Client shall not be authorized to pledge or dispose of the goods to third parties or, as far as applicable, to proceed to assembly. If third parties wish to establish any right to the delivered goods, the client is obliged to inform nC Group BV as soon as possible. The client is obliged to keep and/or make identifiable the goods subject to a retention of title for the benefit of nC Group BV and to separate them from each other and from the other goods in the client’s possession.
3. If the client fails to comply with its obligations or if there is a well-founded fear that it will not do so, nC Group BV is entitled to remove or have removed the delivered goods from the client’s premises or from the premises of third parties holding the goods for the client. Client is obliged to provide all cooperation to this end on penalty of a fine of 10% of the total contract sum for each day that it fails to do so.
Article 17 – Warranty
1. Warranty shall be granted only if expressly agreed and a written warranty certificate has been issued for this purpose. If a warranty is provided not by nC Group BV, but by the manufacturer or another supplier, nC Group BV is not a party to that agreement and, if desired, will only mediate in the settlement of the warranty claim.
2. If nC Group BV provides a guarantee on painting work, it shall always be a descending guarantee for a period of three years, whereby in the first year after delivery 100%, in the second year after delivery 66.66% and in the third year 33.33% of the repair costs shall be reimbursed by nC Group BV, and naturally only if it is established that a claim can be made under the guarantee and that the defect or defects are not the result of acts or omissions by the client.
Article 18 – Applicable law and settlement of disputes.
1. Any agreement between nC Group BV and client shall be governed by Dutch law.
2. Disputes will be settled by the locally competent court in the place of business of nC Group BV. However, nC Group BV is permitted to apply to the court having jurisdiction in the client’s place of residence.
3. The parties may agree in writing on another form of dispute resolution such as arbitration or mediation.