Article 1: Applicability
1.1 These general sales and purchase conditions will hereafter be referred to as: these terms and conditions. Blue Earth Innovations B.V. shall be referred to in its capacity of user of these conditions and/or contractor as: Blue Earth Innovations. The other party shall in its capacity of purchaser and/or contractor be referred to as: the Other Party.
1.2 These conditions apply to all offers made by Blue Earth Innovations, to all agreements that are closed and/or executed and to all agreements that may be the result of this.
1.3 The applicability of the terms and conditions used by the Other Party with respect to any legal relationship with Blue Earth Innovations is explicitly rejected, unless Blue Earth Innovations explicitly and unequivocally declares itself to agree with these terms and conditions by means of authorised representation in writing. Any derogations or additions to these general sales and purchase conditions shall only be binding if Blue Earth Innovations has agreed to this by means of authorised representation and in writing.
1.4 These conditions are valid for all countries. If Blue Earth Innovations makes a translation of these conditions available to the Other Party, the Dutch version of these conditions will prevail in case of any uncertainty concerning the interpretation of these conditions.
Article 2: Offer and conclusion of the agreement
2.1 Offers from Blue Earth Innovations are always issued without obligation and are subject to a period of validity of 30 days, unless Blue Earth Innovations has indicated otherwise in writing.
2.2 The agreement between Blue Earth Innovations and the Other Party shall not be concluded until after Blue Earth Innovations has confirmed the conclusion of this agreement to the Other Party in writing.
2.3 Blue Earth Innovations maintains the right at all times to immediately revoke an offer previous to the confirmation meant in section 2, even after the acceptance of such offer by the Other Party. In this case there shall be no agreement made. Any liability of Blue Earth Innovations for damages as a result of such a revocation is explicitly excluded.
2.4 Obvious errors or mistakes in the offer shall not be binding to Blue Earth Innovations. Neither shall Blue Earth Innovations be bound to faults that have arisen due to the information issued by the Other Party regarding its intended use and (business) needs.
2.5 In case the Other Party submits an (offer of an) assignment to Blue Earth Innovations and the latter declares itself in agreement with the assignment in writing, this assignment shall be binding to the Other Party at all times.
Article 3: Pricing
3.1 Prices that are listed in offers to the Other Party shall always be in euro’s and exclusive of turnover tax, unless indicated otherwise by Blue Earth Innovations in writing.
3.2 The prices applied by Blue Earth Innovations are based on the cost prices which are valid at the time of the offer. Due to price increases as caused by, inter alia, commodity prices, labour costs, exchange rates, devaluation, transport costs and fiscal obligations, legal stipulations, regulations, market developments and/or unforeseen circumstances, the price initially agreed upon may no longer be representative. If, in such cases, the execution of the agreement takes place after more than two months following its conclusion, Blue Earth Innovations has the right to raise the agreed upon price.
3.3 An action of the Other Party to obtain annulment, settlement, suspension, termination and/or damages due to a price increase by virtue of this article is excluded.
Article 4: Payment
4.1 The Other Party is bound to the full payment of the agreed upon price to Blue Earth Innovations within fourteen days after the invoicing date and in accordance with the manner listed on the invoice, unless otherwise agreed upon in writing.
4.2 It is explicitly not allowed for the Other Party to settle its payment obligations with any claims it may have against Blue Earth Innovations. Nor has the Other Party the right to suspend the entire payment.
4.3 If the term referred to in section 1 has expired and the full payment of the price has not been made, the Other Party shall legally be in default without prior notification and/or notice of default. The Other Party shall then be liable for payment of statutory commercial interest in accordance with Article 6:119a Dutch Civil Code as well as the extrajudicial expenses.
4.4 Blue Earth Innovations is at all times entitled to request a pre-payment of up to a maximum of the total amount of the agreed upon price. This security may be requested by Blue Earth Innovations in the form of an advance, a mortgage, a pledge and/or an on-demand bank guarantee it may deem convenient. The Other Party must supply this security upon Blue Earth Innovation’s first request.
Article 5: Delivery
5.1 In case of a purchase agreement, Blue Earth Innovations pledges to deliver the goods and compels the Other Party to receive the goods. Blue Earth Innovations maintains the right to deliver the goods in part or to deliver substitute goods that differ non-substantially.
5.2 If Blue Earth Innovations uses delivery times for its deliveries, these times shall only serve as an approximate indication and can never be deemed as strict deadlines. The failure to meet these delivery times in and of itself cannot be deemed as an attributable shortcoming of Blue Earth Innovations. Neither shall the Other Party have the right to (partially) suspend the agreement, cancel the assignment, suspend its obligations, settle its payment obligations and/or claim damages on any grounds whatsoever. Blue Earth Innovations shall engage in discussion with the Other Party as soon as possible in case a delivery in accordance with the indicated delivery times appears to be impossible.
5.3 Delivery shall be made ‘Ex Works’ in accordance with the Incoterms 2010. The Other Party is obligated to receive the goods at the time and place agreed upon with Blue Earth Innovations from the moment of delivery. If the Other Party fails to do so, the non-accepted goods shall be stored by Blue Earth Innovations at cost and at the risk of the Other Party. All costs and risks transfer to the Other Party from the time of delivery. Any damages occurring between the time of delivery and the actual retrieval of the goods by the Other Party, whether or not because Blue Earth Innovations performs other activities for the benefit of the Other Party after the delivery, shall at all times be for the account and at the risk of the Other Party.
5.4 It may be stipulated in the agreement that Blue Earth Innovations delivers the goods in a different manner.
5.5 In case the Other Party remains in default of its purchase obligation, Blue Earth Innovations is entitled to, without any prior notice, claim the payment of the sales price of the part not accepted, suspend its obligation, suspend the agreement or terminate the agreement in whole or in part. In such cases, Blue Earth Innovations maintains the right to claim full compensation for all damages incurred.
Article 6: Execution of the assignment
6.1 If Blue Earth Innovations is given an assignment by the Other Party, Blue Earth Innovations strives to execute this assignment within the time and on the location as noted in the agreement. In this context, Blue Earth Innovations only has an obligation of effort.
6.2 If Blue Earth Innovations deems additional work necessary, Blue Earth Innovations will charge the cost of the additional work to the Other Party. The absence of a written assignment for the additional work does not affect the claim to the payment of the additional work.
6.3 The Other Party ensures that Blue Earth Innovations is able to execute the agreed upon services. If the Other Party must perform (preparatory) works in the context of the assignment as meant in the first section, it is obligated to perform these in such timely manner to ensure that this causes no delays to the execution of the assignment by Blue Earth Innovations. In the absence thereof, the waiting hours and/or damages and/or costs shall be charged to the Other Party.
6.4 After the execution of the assignment by Blue Earth Innovations, the Other Party must check the result within a reasonable time considering the circumstances, though at least within (a maximum of) fourteen days. The execution of the assignment shall be deemed accepted by the Other Party if Blue Earth Innovations does not receive a duly justified written complaint concerning the executed work within this time frame.
6.5 After acceptance by the Other Party, all legal rights which the Other Party may be entitled to with respect to Blue Earth Innovations are terminated.
6.6 If the Other Party is and/or remains in default concerning its obligation to enable Blue Earth Innovations to execute the agreed upon assignment, Blue Earth Innovations is entitled to, without prior notice, claim the payment of the sales price of the part not accepted, suspend the agreement or terminate the agreement in whole or in part. In such cases, Blue Earth Innovations shall be entitled to claim full compensation from the Other Party for all damages incurred.
Article 7: Force Majeure
7.1 In case of hindrance of the execution of the agreement due to force majeure, Blue Earth Innovations has the right to decide by itself to suspend its obligations, to indicate another time for the execution or to (partially) suspend the agreement, in each instance Blue Earth Innovations shall not be bound to the compensation for any damages.
7.2 If Blue Earth Innovations suspends or terminates the agreement, in accordance with the first section of this article, it is entitled to request immediate payment of the works already executed and goods already delivered within the assignment.
7.3 Force majeure shall in any case include all circumstances independent of Blue Earth Innovations’ intention, that permanently or temporarily hinder the execution of the agreement, as well as, insofar as not yet included therein, war, the risk of war, civil war, riots, terrorism, (international) trade barriers, work strikes in the company of Blue Earth Innovations, in an affiliated company or with logistics providers, transport difficulties, fire, storm, sand nuisance, weather conditions, water nuisance and/or resulting damages and other disruptions in the company of Blue Earth Innovations or its supplier.
7.4 In case of force majeure, Bleu Earth Innovations cannot be held liable for compliance and/or damages of any kind.
Article 8: Retention of title, right of retention and securities
8.1 Blue Earth Innovations stipulates a retention of title concerning all goods delivered to the Other Party. Aforementioned goods shall remain under the full ownership of Blue Earth Innovations to the extent that the Other Party:
- has not satisfied all claims that Blue Earth Innovations shall have concerning the compensation for goods delivered or to be delivered by Blue Earth Innovations to the Other Party in accordance with the agreement;
- has not satisfied all claims that Blue Earth Innovations shall have against the Other Party concerning the compensation for works performed or to be performed for the benefit of the Other Party in accordance with the agreement;
- fails to meet its obligations from this or other agreements;
- has not satisfied claims which arise from the failure to comply with the agreements named above, such as damages, fines, interests and costs.
8.2 Blue Earth Innovations has the right, at all times, to retrieve the goods hereunder from the Other Party and/or third parties upon invoking its retention of title. The Other Party shall grant its full cooperation hereto and grant unlimited access to all its sites and/or buildings. If Blue Earth Innovations cannot execute its retention of title for any reason, for example due to (spurious) interference, the Other Party is liable to Blue Earth Innovations for all damages caused by this.
8.3 Blue Earth Innovations may invoke a right of retention on any goods belonging to the Other Party which Blue Earth Innovations, for any reason, has or shall have in its possession, against anyone requiring surrender thereof. Blue Earth Innovations may invoke this right of retention as long as the Other Party does not meet its obligations to Blue Earth Innovations.
8.4 Upon first request, the Other Party shall be obligated to provide a security for the claims Blue Earth Innovations (may) have against it based on these terms and conditions, the underlying agreement(s) or any other legal fact. This security may include, but is not limited to, a right of lien. The lien applies to all goods and claims that the Other Party, at the time of signing the deed of pledge, possesses or shall possess against and from third parties based on the legal relationships that exist at the time of signing the deed of pledge. The lien serves as a security for all claims that Blue Earth Innovations possesses or shall obtain in the future at the time of signing the deed of pledge under its current existing legal relationship with the Other Party. Blue Earth Innovations shall also be entitled to demand securities from the Other Party at all times, such as, though not limited to, a bank guarantee and/or pre-payment.
Article 9: Intellectual Property
9.1 Blue Earth Innovations owns all intellectual property rights of, including but not limited to, digital or other reports, drawings, designs, sketches, calculations, offers, brochures, prototypes, texts, images and videos related to its developed and/or advertised and/or delivered goods, unless these already belong to third parties or unless this has been otherwise agreed upon in writing.
Article 10: Processing of Personal Data
10.1 In so far as personal data is processed by Blue Earth Innovations in the context of the execution of the works, this personal data shall be processed in a proper and careful manner in accordance with the General Data Protection Regulation and other privacy regulations.
10.2 Blue Earth Innovations may process personal data for, inter alia, the following purposes: drafting and executing the agreement, billing and payment administrating, guaranteeing the quality and developing its services, market research, sales activities and direct marketing for services and/or products. The personal data provided by the Other Party shall be recorded in the customer administration of Blue Earth Innovations. The processing of the aforementioned data will be recorded in a registry intended for this use insofar as this is relevant. The data shall not be used for other purposes or transferred to third parties without prior notification to, or, in as far as is required by relevant regulations concerning the protection of personal data, prior consent of the Other Party, unless explicitly otherwise agreed upon in writing between Blue Earth Innovations and the Other Party.
10.3 Technical and organisational measures shall be taken to protect personal data from loss or any form of unlawful processing, with regard to the state of the art and the type of processing.
10.4 Blue Earth Innovations shall at all times handle personal information it has been given with care. Blue Earth Innovations shall however not be liable for any damages on the side of the contractors or third parties which is caused by the insufficient protection of, inter alia, devices, networks, systems, software, cloud data, data repositories and databases.
10.5 Blue Earth Innovations does not keep personal data longer than allowed or required by law for the purposes listed above. Blue Earth Innovations take the appropriate technical and organisational measures to protect personal data.
10.6 Blue Earth Innovations can never be held liable for damages caused by a contractor in case the latter acts as the processor of personal data, regardless of how the damages occurred. The contractor indemnifies Blue Earth Innovations from, inter alia, imposed fines and claims of persons in connection to the GDPR of persons whose personal data is registered and processed by the contractor or for which the contractor is otherwise responsible.
Article 11: Liability
11.1 Blue Earth Innovations is, specifically with regard to the exclusion of all liabilities in these terms and conditions, only liable for the direct damages due to shortcomings attributable to it in the execution of the direct commitment to deliver goods and/or perform services. This liability is limited to the part of the billed amount that is related to Blue Earth Innovations’ shortcoming proven by the Other Party. Blue Earth Innovations is not bound to take out liability insurance. If Blue Earth Innovations does take out liability insurance, then the maximum liability shall never be higher than the coverage by Blue Earth Innovations’ liability insurance increased by the deductible.
11.2 Blue Earth Innovations is liable for damages caused by wilful acts or intentional recklessness of persons belonging to the management of Blue Earth Innovations.
11.3 Blue Earth Innovations is specifically not liable for any damages whatsoever due to the lawful, inter alia, revocation of an offer, exercise of the right(s) to suspension and (partial) dissolution of the agreement.
11.4 Without limitation, Blue Earth Innovations specifically denies liability for indirect damages consisting of, inter alia:
- financial loss and/or injury to a person or animal and/or property damage, regardless of whether the damages are caused by soil contamination, air pollution, water contamination, odour nuisance, noise pollution, vibration nuisance, leakages and failure of and/or faults in and/or insufficient growth of crops, yields or water purification, regardless whether the damages are due to the failure of the delivered goods and/or executed assignment to function properly for any reason;
- consequential damages, including but not limited to damages to the Other Party’s goods, stagnation damage, production loss, lost profit, transport costs and travel and accommodation costs, regardless of whether the damages are caused by soil contamination, air pollution, water contamination, odour nuisance, noise pollution, vibration nuisance, leakages and failure of and/or faults in and/or insufficient growth of crops, yields or water purification, regardless whether the damages are due to the failure of the delivered goods and/or executed assignment to function properly for any reason;
- damage due to delay because of a failure to comply on time by Blue Earth Innovations;
- supervision damages, including but not limited to damages that are caused to goods located nearby the work site;
- financial loss and/or injury to a person or animal and/or property damage, caused by normal wear and tear, by installation, assembly, adjustments, repairs to goods by the Other Party or a third party hired by the Other Party, by water damages, storm damages, over voltage, broken fuses, induction and/or lightning damage.
11.5 Blue Earth Innovations is not liable for damages due to auxiliary materials, auxiliary persons or non-executive subordinates of Blue Earth Innovations, regardless of whether these damages were caused by wilful act, gross fault, negligence or purposeful recklessness.
11.6 Blue Earth Innovations is not liable for damages caused by wilful acts or fault by the Other Party, as well as the non-standard, incompetent or careless use of goods by the Other Party or third parties. Blue Earth Innovations is also not liable for damages caused by defaults that it could not reasonably be aware of, as well as damages caused by unforeseen factors or factors outside of the influence of Blue Earth Innovations.
11.7 If the damage of the Other Party was already insured or should have been insured, Blue Earth Innovations shall not be liable. The Other Party warrants that insurance companies and others can never make recourse demands against Blue Earth Innovations due to compensation paid to the Other Party. The Other Party indemnifies Blue Earth Innovations against any claim of recourse.
11.8 Blue Earth Innovations is not liable for loss of data and/or a security breach of, including but not limited to, devices, networks, systems, software, cloud data, data repositories and databases and/or other processing systems, that may or may not have come about by accident or unlawful act, may or may not have an internal or external cause and may or may not lead to any damages. The Other Party shall indemnify Blue Earth Innovations from all damages due to loss of data and/or a security breach as described in the first full sentence of this section which arises due to acts, negligence or a risk belonging to the Other Party. The Other Party shall indemnify Blue Earth Innovations from any claim from (a) third (legal) person(s) who may have suffered damages due to a loss of data and/or security breach as described in the first full sentence of this section. The Other Party is bound to take out an appropriate (liability) insurance for this.
11.9 The exclusions of the liability from the terms and conditions in this agreement are not only limited against the Other Party. Blue Earth Innovations is also entitled to invoke the exclusion of liability against third parties which are in any way involved in the agreement(s) between itself and the Oher Party, or against third parties who believe to have a claim against Blue Earth Innovations based on a legal relationship with the Other Party.
11.10 The Other Party indemnifies Blue Earth Innovations and shall also hold it harmless against any claims from third parties for any reason whatsoever, including but not limited to, those for compensation for damages suffered by these third parties and in any way connected to the legal relationship between Blue Earth Innovations and the Other Party and/or the use or application of the delivered goods and or executed services from Blue Earth Innovations.
Article 12: Suspension and termination
12.1 If the Other Party does not meet its obligations, or not properly, or not in a timely manner, Blue Earth Innovations has the right to suspend the execution of the agreement, wholly or in part, by choice, without prior notice and without legal intervention.
12.2 Blue Earth Innovations can also execute the right in the first section of this article if it has concluded on good grounds that the Other Party shall not be able to (in a timely manner and properly) meet any obligation to Blue Earth Innovations, as well as in case of (fear of) bankruptcy, moratorium on payments, suspension, credit limits or the exceedance thereof, liquidation or partial transfer – whether or not as surety – of the company of the Other Party, including the transfer of (a part of) its claims.
12.3 Blue Earth Innovations shall under no circumstances be able to be held liable for damages due to an appeal to this article.
12.4 The Other Party may only suspend and/or (whether or not partially) terminate the agreements in case of a attributable substantial shortcomings in the execution of the direct performance as based on the agreement and these terms and conditions (delivery of goods and/or execution of the assignment), taking all limitations in this agreement and these terms and conditions into account. An appeal for suspension or termination by the Other Party shall only be made in a written statement directed to Blue Earth Innovations. In all other cases, the right of the Other Party to suspension or (partial) termination is explicitly excluded. Blue Earth Innovations shall under no circumstances be liable for damages arising from an appeal from the Other Party for suspension or (partial) termination.
Article 13: Loss of Rights
13.1 The Other Party cannot appeal anymore to the fact that what has been delivered does not meet the standards set for delivery, if it has not given written notice thereof to Blue Earth Innovations upon receiving the delivery or, in any case, within fourteen days following the delivery of the goods.
13.2 Blue Earth Innovations shall be enabled to check any complaint. If the complaint is found to be valid by Blue Earth Innovations, Blue Earth Innovations has the choice – where applicable – to take the goods back, exchange them, give a price discount or take any other measure it may deem appropriate.
13.3 Complaints with respect to invoices need to be submitted to Blue Earth Innovations in writing within at most fourteen days after the date of invoice, in the absence of which each appeal to these errors lapses and the invoices shall be deemed undisputed.
Article 14: Applicable Law and Competent Court
14.1 The Dutch law applies to these terms and conditions, the agreement closed between Blue Earth Innovations and the Other Party and any consequent agreement.
14.2 The stipulations of the agreement shall prevail over the stipulations in these general terms and conditions. The Vienna Sales Convention is only supplementary and applies only after the stipulations in the agreement and these terms and conditions. The Vienna Sales Convention is not applicable to the acceptance of and declaration of applicability of these terms and conditions. Neither does the Vienna Sales Convention apply concerning the stipulations of Part III, Chapter Two of that convention, with the exception of Article 39. Article 70 of the Vienna Sales Convention also does not apply.
14.3 All disputes (including those which are only deemed as such by one of the parties), which may arise due to the agreement or consequent agreements, shall only be put to the Court of Limburg, located in Maastricht, the Netherlands, unless Blue Earth Innovations wishes to subject such disputes, as the case may be, to mediation in accordance with the regulations of the Mediators Foundation of the Netherlands [Mediatorsfederatie Nederland] (based in Rotterdam) as they are on the starting date of the mediation, or to the judgment of three arbitrators, appointed and ruling in accordance with the regulations of the Dutch Arbitration Institute (N.A.I.) in Rotterdam, or to the ruling of a judge of the location where the Other Party is established. The possible arbitration shall take place in the Dutch language.