PROFEX GENERAL TERMS AND CONDITIONS
General terms and conditions of:
Profex Gevelbekleding B.V.
Bruchterweg 88 WA3
7772 BJ Hardenberg, The Netherlands
Chamber of Commerce registration number: 68941021
ARTICLE 1: APPLICABILITY AND DEFINITIONS
1. These terms and conditions apply to every offer and to every contract of purchase and sale as well as all contracts for services for the development and/or production of items by Profex Gevelbekleding B.V., hereinafter to be referred to as “Profex”.
2. The natural person or legal entity with whom Profex concludes a contract shall hereinafter be referred to as the “counterparty”.
3. In these general terms and conditions, “in writing” means: by letter, by email, by fax or any other manner of communication that can be equated with this in view of the state-of-the-art and the views prevailing in society.
4. In these general terms and conditions, “order” means: an order issued by the counterparty to develop or produce (custom) items as well as the sale or purchase of items.
5. In these general terms and conditions, “items” means: the items to be delivered by Profex from stock such as wooden poles, plastic profiles, etc., as well as plastic profiles to be manufactured by order unless explicitly indicated in a provision that this provision only applies to the items mentioned last.
6. In these general terms and conditions, “documents” means: the advice, calculations, drawings, reports, designs, etc. to be manufactured or provided by Profex and/or to be provided by the counterparty. These documents, which include digital files, may be set down in writing or on other data carriers such as CD-ROMs, DVDs, USB flash drives, etc.
7. In these general terms and conditions, “information” means: both the documents and the other (verbal) data that are or should be provided by Profex and/or the counterparty.
8. The possible inapplicability of (a part of) a provision of these general terms and conditions does not affect the applicability of the other provisions.
9. If there is a discrepancy or conflict between these general terms and conditions and a translated version thereof, the Dutch text shall prevail.
10. These general terms and conditions shall also apply to additional or partial orders arising from the contract and partial and subsequent orders.
11. If Profex has already provided the counterparty with these general terms and conditions several times, there is a lasting trading relationship. It is then no longer necessary for Profex to declare that the general terms and conditions apply and/or to provide them in order for them to apply to subsequent contracts.
12. Stipulations that deviate from the stipulations that are in these general terms and conditions such as the purchase or other general terms and conditions of the counterparty, shall not be in effect between the parties unless they have been agreed on in consultation with Profex and have been explicitly accepted as such in writing by Profex.
ARTICLE 2: OFFERS, QUOTES AND PRICES
1. Each offer and each quote by Profex is valid for the time frame it specifies. Each offer or quote that does not specify a time frame is without obligation. With a no-obligation offer or a no-obligation quote, Profex is entitled to recall this offer or this quote within 2 working days at the latest after receipt of acceptance.
1. The prices and rates listed in an offer, quote, the website and/or list of prices or rates do not include VAT and any costs such as transport costs, administration costs and invoices from third parties that/who have been engaged.
2. A combined drawn-up offer or quote does not commit Profex to deliver a part of the service offered for a corresponding part of the price or the rate.
3. If the offer or the quote is based on information provided by the counterparty and this information proves to be incorrect or incomplete or is changed later, Profex is entitled to adjust the indicated prices, rates and/or delivery periods.
4. The offer, quote prices and/or rates do not automatically apply to additional or new orders.
5. Models and examples that have been shown and/or provided, specifications of colours, dimensions and other descriptions in brochures, promotional material and/or on Profex’s website are as accurate as possible but are simply meant to serve as an indication. The counterparty cannot derive any rights from them.
6. The models and examples provided shall remain the property of Profex and must be returned to Profex upon first request at the expense of the counterparty.
7. Profex is entitled to charge the counterparty for the costs incurred by a quote provided that the counterparty has been informed of these costs in writing in advance.
8. If the counterparty does not accept an offer or quote, the counterparty must return all documents provided by Profex with this offer or quote to Profex.
9. If, between the date of concluding the contract and the execution thereof circumstances occur that cause an increase in (cost) price for Profex as the result of amendment to the law and legislation, government measures, currency fluctuations or changes in the prices of the materials required, Profex is entitled to increase the prices and rates agreed on accordingly and to charge them onto the counterparty.
ARTICLE 3: CONCLUDING CONTRACTS
1. Unless an order from Profex’s online shop is involved, the contract is concluded after the counterparty has accepted Profex’s offer even if this acceptance deviates from this offer on minor points. However, if the counterparty’s acceptance deviates with regard to essential points, the contract shall only be concluded if Profex has agreed to these deviations in writing. With an order from Profex’s online shop, the contract is concluded at the time the counterparty has accepted Profex’s offer as listed in the online shop.
2. If the counterparty has accepted the offer electronically (for example, by placing an order on the Seller’s online shop), Profex shall confirm the receipt of the acceptance of the offer immediately by electronic means.
3. Profex is only bound by:
1. An order without a prior offer;
2. Verbal agreements;
3. Supplements or amendments to the general terms and conditions, the order and/or the contract; after written confirmation of this to the counterparty or as soon as Profex – without objection by the counterparty – has commenced with the execution of the order or contract.
ARTICLE 4: COOLING-OFF PERIOD/RIGHT OF WITHDRAWAL
1. If a consumer sale has been concluded through Profex’s online shop, the counterparty is entitled to return (a part of) the goods delivered within a cooling-off period of 14 calendar days without giving a reason for the return.
2. The cooling-off period referred to in paragraph 1 shall commence on the day after the counterparty, or a third party designated by the counterparty who is not the transporter, has received the goods; or
3. If the counterparty has ordered several goods in the same order: the day on which the counterparty, or a third party designated by the counterparty, has received the last good.
4. If the delivery consists of goods from different shipments or parts: the day on which the counterparty, or a third party designated by the counterparty, has received the last shipment or the last part;
5. With contracts for the regular delivery of goods throughout a specific period: the day on which the counterparty, or a third party designated by the counterparty, has received the last item.
6. The right of withdrawal does not apply to:
• Service contracts after complete execution of the service and exclusively when the execution has commenced with explicit prior consent from the counterparty and the counterparty has declared that he/she shall lose his/her right of withdrawal as soon as Profex has executed the contract in full;
• Goods that have been manufactured in accordance with the counterparty’s specification, for example, custom work, or those that are of a personal nature.
• Products of which the shelf life shall expire within the cooling-off period of 14 days (deteriorate).
• Sealed products that are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.
• Sealed audio/video or software carriers that were unsealed.
ARTICLE 5: OBLIGATIONS ON THE PART OF THE COUNTERPARTY DURING THE COOLING-OFF PERIOD
1. During the cooling-off period, the counterparty shall be careful with the goods and the packaging. He/she shall only unpack or use the goods to the extent necessary to be able to assess the nature, characteristics and operation of the goods. The basic assumption here is that the counterparty may only handle and inspect the goods as he would be allowed in a shop.
2. The counterparty is liable for depreciation of the goods that is the result of a manner of handling the goods that goes beyond that which is permitted in paragraph 1.
ARTICLE 6: EXERCISING THE RIGHT OF WITHDRAWAL BY THE COUNTERPARTY AND THE COSTS THEREOF
1. If the counterparty exercises his/her right of withdrawal, he/she shall notify Profex of this within the cooling-off period by means of the standard form for cancellation or in another unambiguous manner.
2. As quickly as possible, but within 14 days as from the day following the notification referred to in paragraph 1, the counterparty shall return the goods or hand them over to (an authorised representative of) Profex.
3. The counterparty shall return the goods with all accessories supplied, in their original state and packaging if reasonably possible and in accordance with the instructions provided by Profex.
4. The risk and burden of proof for the correct and timely exercise of the right of withdrawal shall lie with the counterparty. The counterparty must prove that the delivered goods were returned in a timely fashion by means of, for example, proof of postal delivery.
5. The counterparty shall bear the direct costs of returning the goods.
6. If the counterparty withdraws after first having explicitly requested that the performance of the service commence during the cooling-off period, the counterparty shall owe Profex an amount that is proportional to that part of the commitment that Profex had fulfilled at the time of withdrawal compared to full compliance of the commitment.
ARTICLE 7: OBLIGATIONS ON THE PART OF PROFEX UPON WITHDRAWAL
1. Profex shall reimburse all payments made by the counterparty including any delivery costs charged by Profex for the returned goods immediately or at least within 14 days following the day on which the counterparty notified it of the withdrawal. Unless Profex offers to pick up the goods itself, it may wait with refunding until the goods have been received or until the counterparty can prove that the counterparty has returned the goods, whichever time is earlier. When returning the entire purchase, the full purchase price including any calculated shipping and/or payment costs shall be refunded to the counterparty. The counterparty shall bear the costs of returning the goods. By returning only a part of the goods, only the purchase value of the goods returned shall be refunded.
2. For the refund, Profex shall use the same means of payment that the counterparty used unless the counterparty agrees to another method.
3. If the counterparty has elected a method of delivery that is more expensive than the cheapest standard delivery, Profex is not required to refund the additional costs for the more expensive method.
4. Returning the goods shall entirely be at the expense and risk of the counterparty.
ARTICLE 8: ENGAGING THIRD PARTIES
If a proper execution of the contract so requires in the opinion of Profex, it may have certain services performed by third parties.
ARTICLE 9: OTHER OBLIGATIONS ON THE PART OF THE COUNTERPARTY
1. The counterparty must ensure that:
– It makes available to Profex all information required for the execution of the contract in a timely fashion in the manner as required by Profex;
– Any data carriers, files, etc. provided by the counterparty to Profex are free of viruses and defects.
2. The counterparty shall ensure that the information provided is correct and complete and indemnifies Profex for claims by third parties that arise from the incorrectness and/or incompleteness of this information.
3. Profex shall treat the information provided by the counterparty as confidential and only provide this information to third parties insofar as necessary for the execution of the order/contract. Profex shall save and store all information and files received from the counterparty during the contract with great care. However, Profex can never be held liable for the loss or destruction of this information or these files unless due to intent and/or wilful recklessness on the part of Profex or the supervisory staff at management level. The counterparty must always ensure that it keeps the original or a copy of the documents and files provided to Profex.
4. All items supplied by Profex may only be sold on by the counterparty in Profex’s original packaging. The counterparty may not make any changes to the original packaging and must prevent any damage.
5. If the counterparty does not comply with the aforementioned obligation or does not do so in a timely fashion, Profex is entitled to suspend the execution of the contract until the time that the counterparty does fulfil its obligations. The costs linked with the delay incurred and lost working hours, the costs for carrying out extra work and the other consequences that arise from this are at the expense and risk of the counterparty.
ARTICLE 10: DELIVERY AND TERM OF DELIVERY
1. Terms of delivery agreed on can never be regarded as strict deadlines. If Profex does not fulfil the service agreed on fully or in a timely fashion, the counterparty must give notice of default in writing and grant Profex a reasonable period to still deliver this service.
2. Profex is entitled to deliver or execute the order in parts, with each partial delivery or service being invoiced separately.
3. Unless it concerns an order on Profex’s online shop, the risk for delivering items transfers to the counterparty at the time of delivery. This is the time at which the items to be delivered leave Profex’s building, warehouse or factory or Profex has informed the counterparty that it can pick up these items (delivery ex-works). The shipment or transport of the item at the request of the counterparty shall take place at the expense and risk of the counterparty and in a manner to be determined by Profex. Profex cannot be held liable for damage of any kind – whether or not to the items themselves – that is connected to the shipment or the transport.
4. If an order from Profex’s online shop is involved, Profex shall bear the risk of transport and the risk for the items shall transfer as per the moment that these items arrive at the location of the counterparty and are actually at the counterpart’s disposal.
5. If, due to a reason that lies within the responsibility of the counterparty, it does not appear possible to deliver the items (in the manner agreed) to the counterparty or these items are not picked up, Profex is entitled to store them at the expense and risk of the counterparty. The counterparty must enable Profex to deliver these items within a reasonable period, to be set by Profex after notification of the storage or to pick up the items within this period.
6. If the counterparty continues to be in default in its purchase obligation after the period specified in the previous paragraph, it shall be in default immediately. Profex is then entitled to terminate the contract, fully or in part, immediately by means of written notice and to sell the items to third parties without an obligation on the part of Profex to compensate for damages, costs and interest arising from this. The aforementioned does not affect the obligation on the part of the counterparty to compensate for any (storage) costs, loss due to delay, loss of profits or other damage or the right of Profex to nevertheless demand fulfilment.
ARTICLE 11: PACKAGING
1. Packaging that is intended to be used several times remains the property of Profex. This packaging may not be used by the counterparty for purposes other than for which it is intended.
2. Profex shall determine whether the packaging must be returned by the counterparty or whether it shall pick up this packaging itself and at whose expense this shall take place.
3. Profex is entitled to charge the counterparty a fee for this packaging. If the packaging is returned carriage paid by the counterparty within the agreed period, Profex must accept this packaging and shall repay the counterparty the fee charged or offset it with the fee that the counterparty must pay for packaging in a subsequent delivery.
4. If the packaging is damaged, incomplete or has been destroyed, the counterparty is liable for this damage and his/her entitlement to a refund of the fee lapses.
5. If the damage referred to in the previous paragraph is greater than the fee charged, Profex is not required to accept the packaging. Profex is then entitled to charge this to the counterparty at cost price decreased by the fee paid by the counterparty.
6. For one-time use packaging, Profex is not required to accept it and may leave it with the counterparty. Any costs for its disposal are for the expense of the counterparty.
ARTICLE 12: DELIVERY AND APPROVAL
1. With regard to items commissioned to be developed or manufactured by Profex, Profex is obligated to inform the counterparty that the work has been completed and the items are ready for use.
2. The items shall be deemed to be delivered in accordance with the contract if they have been made available ready for use to the counterparty, the counterparty has checked the agreed specifications, properties, qualities, etc. and the delivery form or work slip has been signed for approval.
3. The items shall also be deemed to be delivered in accordance with the contract if the counterparty has not inspected the items or submitted a complaint to Profex within a period of 2 weeks after the goods were ready for use or so much earlier if the other party has already taken the items into use prior to this day as far as this is possible.
4. Work that has not yet been performed or not yet terminated by third parties engaged by or on behalf of the counterparty that may affect the proper use of the items shall not affect the items being ready for use or the delivery of these items.
5. If, after delivery, the counterparty wants to have changes made to the items, this shall be regarded as contract additional work. Profex shall then be entitled to charge any arising costs and/or the time to be spent on these changes to the counterparty separately.
6. If the counterparty discovers defects, imperfections, etc. with regard to the items after delivery, the provisions included in the complaints article (Article 14) of these general terms and conditions shall apply.
ARTICLE 13: CONTRACT ADDITIONS AND OMISSIONS
1. Contract additional work is understood to include: all additional work and deliveries that are not included in the offer, quote or order at the request of the counterparty or necessary for the performance of the contract.
2. Contract additions and omissions must be agreed on in writing between Profex and the counterparty.
3. Offsetting contract additions and omissions shall take place:
1. In relation to changes in the original order;
2. In relation to unforeseen cost increases or decreases and deviations from offsettable and/or estimated amounts.
4. Offsetting contract additions and/or omissions shall take place immediately with the final settlement unless agreed otherwise in writing.
ARTICLE 14: COMPLAINTS AND RETURN SHIPMENTS
1. The counterparty must check the items delivered immediately upon receipt and list any visible defects, deviations in numbers and/or other non-conformities in the consignment note or accompanying receipt. If a consignment note or accompanying receipt is missing, the counterparty must notify Profex in writing of visible deficits, defects, etc. within five (5) working days after receipt of the items, followed by a written confirmation thereof.
2. If notification as referred to in the previous paragraph is not forthcoming, the items shall be deemed to have been received in good condition and that they comply with the contract.
3. Profex must be notified in writing of other complaints including defects not visible upon delivery immediately upon discovery – or at least within the applicable guarantee period. All consequences of not reporting this immediately are at the risk of the counterparty. If no explicit guarantee period has been agreed, a period of 1 year after delivery shall apply. After expiry of a period of 1 year, all rights on the part of the counterparty with respect to non-conformity shall lapse.
4. If a complaint has not been reported to Profex within the period specified in the previous paragraphs, the rights on the part of the counterparty with respect to non-conformity shall lapse.
5. Items shall be delivered in the (wholesale) packaging and/or minimum quantities or amounts that are in stock at Profex. Profex does not regard deviations regarding sizes, weights, quantity, colours, etc. that are acceptable in the sector as shortcomings on its part. Nor are claims under the guarantee possible in this respect.
6. Complaints do not suspend the obligation of payment on the part of the counterparty unless a consumer sale is involved.
7. The counterparty must allow Profex to investigate the complaint and provide Profex with all information relevant to this. If the investigation of the complaint requires a return shipment, the costs shall be at the expense of the counterparty unless the complaint proves to be valid. The transport risk is always for the counterparty.
8. In all cases, a return shipment shall take place in a manner to be set by Profex and in the original packaging.
9. No complaints regarding discolouration and minor variations in colour are possible.
10. No complaints about items that the counterparty shall adapt or process, wholly or partially, are possible.
ARTICLE 15: GUARANTEES
1. Profex shall ensure that the contract/order is executed properly and in accordance with the standards applicable in its sector, but shall never give a further guarantee with regard to the delivered items than as explicitly agreed between the parties.
2. Throughout the guarantee period, Profex guarantees the regular standard quality and reliability of the items delivered.
3. If Profex involves resources or materials from third parties for the production of the items, Profex bases itself on the information provided by the manufacturer or the supplier with regard to the behaviour and properties of these resources and materials. If the manufacturer or the supplier issues a guarantee, that guarantee shall be equally valid between the parties. Profex shall inform the counterparty of this.
4. If the purpose for which the counterparty wants to process or use the items deviates from the customary purpose of these items, Profex shall only guarantee that the items are suitable for this purpose if this has been confirmed in writing to the counterparty.
5. Invoking the guarantee is not possible as long as the counterparty has not paid the agreed price or fee for the items.
6. If the guarantee is invoked properly, Profex shall arrange for repair or replacement of the items free of charge or for a refund of or a discount on the agreed price or fee at its discretion. If there is collateral damage, the provisions of the liability article included in these general terms and conditions shall apply.
ARTICLE 16: LIABILITY
1. Profex shall accept no liability whatsoever outside of the guarantees explicitly agreed on or given by Profex.
2. Without prejudice to the provision in the previous paragraph, Profex is only liable for direct damage and losses. Any liability on the part of Profex for consequential damage or losses such as trading losses, damage to other items, damage due to business interruption, loss of profits and/or losses suffered, losses due to delay and/or personal or bodily injury are explicitly excluded.
3. The counterparty must take all measures that are necessary for the prevention of or restriction of the damage and/or losses.
4. If Profex is liable for the damage or losses suffered by the counterparty, Profex’s liability for compensation shall always be restricted to not more than the amount paid out by its insurer for the case in question. If the insurer does not pay or the damage or losses is/are not covered by insurance taken out by Profex, Profex’s liability for compensation is restricted to not more than the invoice amount for the items delivered.
5. The counterparty must notify Profex in writing of any liability within at most 6 months after it has become aware of or could have been aware of the damage that arose due to a defect in the items. If the counterparty fails to do so, it shall surrender all rights in the matter.
6. Profex is not liable and the counterparty may not invoke the applicable guarantee if the damage or losses has/have arisen:
1. Due to incompetent use or use that conflicts with the purpose of the items or use that conflicts with the instructions, advice, etc. provided by Profex;
2. Due to incompetent storage or maintenance of the items;
3. Through errors, incompleteness or defects in the information provided to Profex by or on behalf of the counterparty;
4. Through indications or instructions from or on behalf of the counterparty;
5. Because repairs or other work or processing of the item was done on the delivered items by or on behalf of the counterparty without explicit prior consent from Profex.
7. In the cases summarised in the previous paragraph, the counterparty is fully liable for all damage and losses arising from this and indemnifies Profex explicitly for all claims by third parties for compensation for this damage or losses.
8. The restrictions of the liability included in this article do not apply if the damage or losses is/are due to intent and/or wilful recklessness on the part of Profex’s supervisory staff at management level or if mandatory statutory provisions oppose this.
9. The provision in this article does not apply if there is a consumer contract.
ARTICLE 17: PAYMENT
1. Profex is always entitled by law to demand (partial) prepayment or any other security for payment on the part of the counterparty.
2. Payment must take place within a due date of 30 days after the invoice date unless the parties have agreed in writing on another payment period. In addition, the correctness of an invoice has been established if the counterparty has not objected within this payment period.
3. If an invoice has not been paid after the expiry of the period referred to in the previous paragraph or if collection by direct debit could not take place, the counterparty shall owe Profex default interest at 2% per month to be calculated over the principal amount cumulatively. Parts of a month are calculated as a full month unless it is a consumer contract in which statutory regulations apply.
4. If, after demand of payment by Profex, payment is still not made, Profex is also entitled to charge the counterparty extrajudicial collection charges at 15% of the invoice amount where a minimum of € 40 shall apply. If the counterparty is a consumer, once the consumer has been reminded of the late payment by Profex and Profex has granted the counterparty a period of 14 days to fulfil his/her payment obligations after non-payment within this 14 day period, he/she shall owe statutory interest over the amount still owed and Profex is entitled to charge the extrajudicial collection charges that it has incurred. These collection charges shall be a maximum of: 15% of the outstanding amounts up to € 2,500, 10% of the following € 2,500 and 5% of the following € 5,000 where a minimum of € 40 shall apply. In the absence of full payment by the counterparty, Profex is entitled by law to terminate the contract without further notice of default by issuing a written notice or to suspend its obligations arising from the contract until the consumer has made a payment or has issued sound security for payment. Profex shall also have the aforementioned right of suspension if it already has well-founded reasons to doubt the creditworthiness of the counterparty before the counterparty has defaulted on the payment.
5. Payments made by the counterparty shall first be deducted by Profex from all interest and costs owed and then from the due and payable invoices that have been outstanding the longest unless the counterparty states in writing at the time of payment that it is related to a later invoice.
6. The counterparty may not offset claims by Profex with any counterclaims that it may have against Profex. This also applies if the counterparty has applied for (provisional) suspension of payment or has been declared to be bankrupt.
ARTICLE 18: RETENTION OF TITLE
1. Profex shall retain ownership of all items delivered and yet to be delivered pursuant to the contract until the date on which the counterparty has fulfilled all its payment obligations towards Profex.
2. The payment obligations referred to in the previous paragraph consist of payment for the delivered and yet to be delivered items, plus any claims related to work carried out and claims due to attributable shortcomings by the counterparty in complying with its obligations such as claims to payment of compensation, extrajudicial collection charges, interest and any fines.
3. If it concerns the delivery of identical, non-identifiable items, the batch of items belonging to the oldest invoices shall always be deemed to have been sold first. The retention of title is therefore always vested on all items delivered that are still in stock, in the shop and/or in the inventory and equipment of the counterparty at the time of invoking the retention of title.
4. Items on which there is a retention of title may be sold by the counterparty in the framework of regular business operations provided the counterparty has also stipulated a retention of title on the delivered goods with the counterparty’s customers.
5. As long as a retention of title is vested on the items delivered, the counterparty may not pledge the items in any way or place the goods under the (actual) control of a financier and/or a third party by means of lists of receivables pledged to a bank.
6. The counterparty must inform Profex immediately in writing if third parties pretend to have rights of ownership or other rights to the items on which a retention of title is vested.
7. The counterparty must store the items carefully and as identifiable property of Profex as long as there is a retention of title on them.
8. The counterparty must take out such business or household insurance that the items that have been delivered under retention of title are always insured and shall allow Profex to inspect the insurance policy and the associated premium payment receipts upon first request.
9. If the counterparty acts in conflict with the provisions of this article or Profex invokes retention of title, Profex and its employees shall be entitled to enter the premises of the counterparty to take back the items delivered under retention of title. This applies without prejudice to Profex’s right to compensation for damage, loss of profits and interest and the right to terminate the contract without further notice of default by issuing a written notice.
ARTICLE 19: INTELLECTUAL PROPERTY RIGHTS
1. Profex is and shall remain the owner of all intellectual property rights that are vested on, arise from, are connected to and/or belong to the items, documents, etc. delivered or manufactured by Profex in the framework of the contract unless the parties have agreed otherwise in writing. The exercise of these rights is reserved explicitly and exclusively to Profex both during and after the execution of the contract.
2. This also means that:
1. The counterparty may not use the documents delivered or manufactured by Profex outside of the context of the contract, may not furnish third parties with these documents, may not allow third parties to consult them and may not make multiple copies without prior written consent from Profex;
2. The counterparty may not imitate, alter, reproduce, etc. the items or parts thereof delivered or manufactured by Profex without prior written consent from Profex.
3. The counterparty guarantees that the documents and files he/she provided to Profex do not infringe on the copyright or any other intellectual property right of third parties. The counterparty is liable for any damage or losses that Profex may suffer as a result of such infringement and shall indemnify Profex against claims by these third parties.
ARTICLE 20: BANKRUPTCY, HAVING NO POWER OF DISPOSAL, ETC.
1. Profex shall always be entitled to terminate the contract, in full or partially, without further notice of default by issuing a written notice to the counterparty at the time at which the counterparty:
1. Has been declared to be bankrupt or has applied for bankruptcy;
2. Has applied for (provisional) suspension of payment;
3. Has been approved with regard to the Debt Restructuring (Natural Persons) Act;
4. Has been subjected to the forced sale of collaterals;
5. Has been placed under guardianship or receivership;
6. Has lost the power of disposition or legal capacity in relation to the counterpart’s assets or parts thereof in any way.
The counterparty must always inform the insolvency practitioner or administrator of the (contents of the) contract and these general terms and conditions.
ARTICLE 21: FORCE MAJEURE
1. In relation to force majeure on the part of the counterparty or Profex, Profex is entitled to terminate the contract by means of a written statement to the counterparty or to suspend its obligations towards the counterparty for a reasonable period of time without being held to any compensation.
2. In these general terms and conditions, “force majeure” on the part of Profex means: a non-accountable shortcoming on the part of Profex, on the part of third parties or suppliers it has engaged or other compelling reasons on the part of Profex.
3. All circumstances in which force majeure occurs on the part of Profex means: war, revolt, mobilisation, domestic and foreign riots, government measures, strikes within Profex’s organisation and/or that of the counterparty or the threat of this and similar circumstances, disturbances to the exchange rates prevailing at the time of entering into the contract, business interruptions due to fire, a break-in, sabotage, outages of power, internet or telephone connections, natural phenomena, (natural) disasters and emergencies, etc. as well as due to weather conditions, blockades, accidents, import and export hindering measures, a lack of materials, etc. arising from transport difficulties and delivery problems.
4. If the situation of the force majeure occurs when the contract has already been partially executed, the counterparty must always fulfil its obligations towards Profex at that time.
ARTICLE 22: CANCELLATION AND SUSPENSION
1. If the counterparty wants to cancel the contract prior to or during its execution, unless there is a withdrawal as referred to in article 4 of these general terms and conditions, it shall owe Profex compensation that is to be set by Profex. This compensation entails all costs incurred by Profex and the damage suffered by the cancellation including the loss of profits. Profex is entitled to fix the compensation and – at its discretion and depending on the deliveries already executed or the work already performed within the framework of the contract/order – to charge the counterparty 20 to 100% of the agreed price.
2. The counterparty is liable towards third parties for the consequences of the cancellation and indemnifies Profex against any claims arising from this by these third parties.
3. Profex is entitled to offset all amounts paid by the counterparty against the compensation owed by the counterparty.
4. With the suspension of the execution of the contract at the request of the counterparty, all costs incurred at that time shall be immediately due and payable and Profex may charge them to the counterparty. In addition, Profex may charge the counterparty for all costs that are to be incurred or have been incurred during the period of suspension.
5. If the execution of the contract cannot be resumed after the agreed duration of suspension, Profex is entitled to terminate the contract by means of a written statement to the counterparty. If the execution of the contract is resumed after the agreed duration of the suspension, the counterparty must reimburse Profex for any costs arising from this resumption.
ARTICLE 23: COMPLAINTS PROCEDURE
1. Profex has a complaints procedure and deals with complaints in accordance with this complaints procedure. The counterparty may also submit a complaint with the EU platform for dispute resolution via http://ec.europa.eu/consumers/odr/.
2. Complaints can be submitted to (add the email address of the complaints officer here)
3. Complaints submitted to Profex shall be answered within a period of 14 days as from the date of receipt. If a complaint requires a considerably longer processing time, Profex shall answer within the period of 14 days with a message of receipt and an indication of when the counterparty may expect a more detailed answer.
4. The counterparty must give Profex at least 4 weeks to resolve the complaint by mutual agreement. After this period, it becomes a dispute that can be dealt with based on the dispute settlement rules.
ARTICLE 24: APPLICABLE LAW/COMPETENT COURT
1. This contract concluded between Profex and the counterparty shall only be governed by Dutch law.
2. The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
3. Any disputes shall be submitted to the competent court in the city in which Profex is domiciled although Profex shall always be entitled to submit a dispute to the competent court in the city in which the counterparty is domiciled.
4. If the counterparty is established outside of the Netherlands, Profex is entitled to choose to submit the dispute to the competent court in the country or state in which the counterparty is domiciled.