TERMS AND CONDITIONS – PRODUCTS & SERVICES – SMART PARKS B.V. (March 2020)
1. Definitions, Applicability
1.1. “SMART PARKS”: Smart Parks BV.
1.2. “Client”: any individual or legal person that requests a quotation from SMART PARKS and/or enters into an Agreement with “SMART PARKS”.
1.3. “Agreement”: any agreement between SMART PARKS and the Client (including but not limited to agreements concerning the provision of services comprised developing, designing, building and maintaining Smart Parks solutions, designing, producing and delivering technical installation and devices).
1.4. All quotations, requests for quotations and Agreements shall be governed exclusively by these Standard Terms and Conditions. Derogations from and additions to these Standard Terms and Conditions shall be valid only if explicitly recorded in the Agreement and/or quotation.
1.5. If the Client explicitly disputes the applicability of these terms and conditions at the time of entering into the agreement and/or refers to its own terms and conditions, the agreement will be deemed not to have been concluded.
1.6. If at the time of entering into the agreement the Client does not explicitly dispute the applicability of these terms and conditions, any terms and conditions that the Client may have can never be applicable.
1.7. At all times, the Client’s standard terms and conditions shall be binding for SMART PARKS only if this has been explicitly accepted in writing by the seller.
2. Partial Nullity and Voidability
2.1. If one or more provisions of these Standard Terms and Conditions are null and void, voidable, or invalid for any other reason, the validity of the other provisions shall remain unaffected. Provisions that are null and void, voidable or invalid shall be deemed to be replaced by provisions that match the intended aim and object of the original provisions as closely as possible.
3. Quotation, Conclusion of the Agreement
3.1. Quotations by SMART PARKS are free of obligation, are not binding, and are valid for a period of 30 calendar days starting from the date of the quotation.
3.2. An Agreement is concluded only once the Client has returned the unconditionally signed quotation, or a written agreement to the quotation, to SMART PARKS. SMART PARKS will not commence with the execution of the Agreement until the Agreement has been concluded. If the urgent nature of the work or any other reason requires SMART PARKS to commence the performance of the work before the Agreement has been concluded, these Standard Terms and Conditions shall also apply to that work and to the oral agreements.
3.3. Sketches, illustrations, measurements, weights or other specifications shall be binding only if explicitly agreed in writing.
3.4. Any terms, amendments and additions to the Agreement shall always be agreed in writing. SMART PARKS shall not be bound by undertakings that are given orally.
3.5. SMART PARKS is entitled to engage independent auxiliary persons or hired workers for the execution of the Agreement without requiring the permission of the Client to do so.
4.1. Only those who are entitled to bind SMART PARKS by virtue of its articles of association and/or an entry in the relevant registers of the Chamber of Commerce and Industries shall have the authority to enter into agreements for SMART PARKS. It should be noted that representatives, agents or other persons not belonging to the SMART PARKS management team shall not have the authority to enter into an Agreement that is binding for SMART PARKS. Undertakings given orally in the form of terms agreed with SMART PARKS employees shall be binding for SMART PARKS only if and insofar as they are confirmed by SMART PARKS in writing.
5. SMART PARKS’s Products & Services
5.1. SMART PARKS shall make its best efforts to perform its services to the best of its ability and to execute the Agreement as well as possible, with the greatest possible care and in accordance with the generally recognised technical practices prevalent at the time when the Agreement was concluded.
5.2. The products and services to be supplied by SMART PARKS shall be described in a proposal. If and insofar as the Client wishes changes to be made at a later stage, the implementation of such changes shall be regarded by SMART PARKS as additional work and shall be charged for accordingly.
5.3. Where additional work is to take place, the delivery/execution period will be extended by the time required to supply or arrange for the supply of the necessary equipment and parts and to perform the additional work.
5.4. If weather conditions prevent SMART PARKS’s work from going ahead, any resulting costs will be for the account of the Client. If the site of the project makes demobilisation impossible, SMART PARKS shall charge a stand-by fee, as yet to be agreed, for the duration of those weather conditions and/or the period during which the survey is put on hold.
5.5. If access to the project area is refused and/or is impossible, no deployment will be done at the site in question. If, at the Client’s request, the activities shall be performed at a later stage, that work can be charged for as additional work based on the time actually spent on it.
5.6. SMART PARKS reserves the right to use different equipment with equivalent or better specifications.
5.7. The employees of SMART PARKS work according to the guidelines laid down in health and safety legislation and the company-wide HSE manual in order to guarantee employee safety during the work. No measurements will be performed at locations where, in the opinion of SMART PARKS employees, it is not possible to work safely.
6. Obligations of the Client
6.1. The Client shall provide SMART PARKS, in a full and timely manner, with the information and decisions that are necessary to enable SMART PARKS to execute and complete the Agreement properly.
6.2. The Client shall ensure that SMART PARKS’s staff and auxiliary persons have free and safe access to the area/working area where SMART PARKS is to perform the services or deliver the products.
6.3. If and insofar as is requested by SMART PARKS, the Client shall ensure the timely and sufficient provision of electricity, water, sanitary facilities, a site hut, a canteen area, and storage space for equipment and materials.
6.4. The Client shall ensure that the site/work site, the building and the storage space for equipment and materials are closed and secured properly.
6.5. The Client shall ensure that SMART PARKS’s staff and auxiliary persons are aware of all the applicable safety standards, health, safety and environmental rules of the Client and/or those that are specifically applicable to the execution of the Agreement.
6.6. The Client shall arrange for all the necessary private and public law consents, such as permits.
7. Price and Payment
7.1. The tender amount and/or prices specified in the quotation and in the Agreement are exclusive of the turnover tax (VAT) that is payable.
7.2. All prices communicated on the SMART PARKS website are purely indicatory
7.3. SMART PARKS shall be entitled to make charges for rises in the price of equipment, rent, freight, salary and social security costs. The quotation date shall be the reference date for price-level purposes.
7.4. In the case of longer term Agreements, SMART PARKS shall be entitled to revise the price level after two years in view of increases in the price of equipment, rent, freight, salaries and social security costs.
7.5. If the Agreement and/or Quotation specifies a payment schedule, the Client shall pay the tender amount in accordance with the deadlines specified therein. Those deadlines shall be considered as final, even if they are backed up by an invoice. If the Agreement does not contain a payment schedule, SMART PARKS shall invoice the tender amount immediately after the work is completed or on a monthly basis proportionate to the progress of the services or deliveries to be provided by SMART PARKS.
7.6. The Client shall pay SMART PARKS’s invoices within 30 calendar days after the invoice date. This payment period shall be regarded as a strict deadline and will not detract from any deadline stipulated in a payment schedule.
7.7. The Client must challenge the accuracy of an invoice or any item(s) therein within 15 calendar days, stating reasons, otherwise the accuracy thereof will be incontrovertible. If the Client contests the correctness of any item in an invoice, stating reasons, it will still be required to pay all the uncontested items. If the contested item transpires to be payable after all, the original due date shall apply to it.
7.8. If the Client does not comply with its payment obligation in a timely manner it will be in default without notice of default being required and SMART PARKS will be entitled to opt either to dissolve the Agreement by means of an extrajudicial declaration or to claim specific performance, in which case the statutory (commercial) interest will be charged on the outstanding debt from the date of default until the date of full payment.
7.9. In the event of an attributable failure by the Client to comply with an obligation in the form of failure to make payment or to make payment in a timely manner, SMART PARKS will be entitled to charge the Client for all extrajudicial costs connected with collecting the amount in question and the Client shall be obliged to pay those costs.
Payment shall be made without making any deductions from the sums due to SMART PARKS on account of any counterclaim.
8. Delivery and Execution Periods
8.1. The delivery and/or execution periods specified by SMART PARKS and stipulated in the Agreement are approximate periods and shall never be regarded as strict deadlines, unless explicitly agreed otherwise. In the event that the Agreement does not specify any delivery and/or execution periods, SMART PARKS shall not be bound by any delivery and/or execution periods whatsoever.
8.2. With due regard to the provision contained in article 12, SMART PARKS shall be liable only for direct losses demonstrably incurred by the Client due to breaches of delivery and/or execution periods agreed in writing, provided that and insofar as the breach is attributable to negligence, a lack of care or mistakes by SMART PARKS.
8.3. SMART PARKS is obliged to notify the Client of any circumstances that may hinder the execution of the Agreement within any delivery and/or execution periods that have been agreed in writing.
9. Ownership and Use of Data
9.1. All plans, reports, sketches, calculations and documents produced by SMART PARKS by order of the Client shall become the property of the Client once the latter has paid for them and may be used by the Client only for the purposes for which they were produced.
9.2. All data provided to and/or items delivered to the Client shall remain the property of SMART PARKS until the Client has fully paid all sums owed, including interest.
9.3. The copyright to all the data referred to in the previous paragraph shall vest exclusively in SMART PARKS. Full or partial publication or reproduction is permitted only with SMART PARKS’s prior written consent. The same shall apply to the passing on and repeated use of such data by third parties or by the Client itself.
9.4. The intellectual property rights to the techniques used by SMART PARKS in the execution of the Agreement shall vest exclusively in SMART PARKS. The Client shall not be entitled to any licence or right of use in respect of the techniques applied by SMART PARKS.
9.5. If during or as a result of the execution of the Agreement an invention emerges that SMART PARKS believes to be patentable, only SMART PARKS shall be entitled to apply for a patent for that invention, in its own name and for its own account. The Client shall not be entitled to any licence or right of use in respect of a patentable invention.
10. Confidentiality, Advertising
10.1. The Client and SMART PARKS are obliged to maintain the confidentiality of all information provided by the other party and considered as confidential, in any form whatsoever.
10.2. SMART PARKS shall be entitled to publicise the project to which the Agreement relates for advertising purposes.
10.3. The Client is obliged to mention SMART PARKS’s name in any publications about the project and the work performed by SMART PARKS, published in any form and spread through any medium whatsoever.
11. Dissolution, Premature Termination
11.1. If the Client fails to comply or to comply in a proper or timely fashion with any obligation that arises for it from the Agreement concluded with SMART PARKS or a connected Agreement, SMART PARKS will automatically be entitled to fully or partially dissolve the Agreement by means of an extrajudicial declaration without any further notification or notice of default being required and will also be entitled to claim the losses it has incurred due to the dissolution.
11.2. SMART PARKS will also be entitled to dissolve the Agreement at the moment when the Client is declared bankrupt or is granted a moratorium on payments, or the Client or its business is shut down or wound up, or in the event of attachment, debt rescheduling becoming applicable, a guardianship order or if the Client loses the power to dispose of all or part of its property in any other way, unless the bankruptcy trustee or administrator acknowledges the obligations arising from this agreement as debts of the estate.
11.3. In the event of dissolution, any mutual claims shall become payable immediately. The Client shall be liable for the losses incurred by SMART PARKS, including but not limited to loss of profit, obligations undertaken in relation to third parties for the Client’s benefit and any transportation costs.
11.4. If, after the Agreement is concluded, circumstances come to light that give SMART PARKS good grounds to fear that the Client will not comply with its obligations, SMART PARKS will be entitled to suspend the performance of its obligations. In the event of suspending performance, SMART PARKS is entitled to require the Client to provide sufficient security for compliance with all of its obligations.
12. Liability of SMART PARKS
12.1. An attributable failure by SMART PARKS to comply shall have taken place only if, despite being summoned to do so, SMART PARKS fails culpably to execute the Agreement in a way that a good consultancy firm, having the professional knowledge and equipment required for the assignment and acting with due care, could have and ought to have avoided.
12.2. SMART PARKS’s liability is limited to a maximum of the tender amount.
12.3. In the case of defective equipment that had been found to be working properly when tested by SMART PARKS, the resulting consequences (financial and otherwise) that arise for the Client will be for the account of the Client and the consequences that arise for SMART PARKS will be for the account of SMART PARKS.
12.4. All equipment will be tested prior to mobilisation. If a delay arises due to equipment failures, SMART PARKS shall repair or replace the equipment as quickly as possible. However, losses arising for the Client and/or third parties, including but not limited to suppliers and shipping companies, as a result of such delays shall not be borne by SMART PARKS BV.
12.5. SMART PARKS shall never be liable to the Client for indirect and consequential losses, including but not limited to trading losses, operating losses, loss of profit and loss of turnover, regardless of the description given to such losses and the way in which they arise.
12.6. All claims by the Client arising from an attributable failure by SMART PARKS to comply will lapse two years after the Client discovers the failure or reasonably ought to have discovered it, and in any case five years after the assignment has been completed by SMART PARKS.
13. Force Majeure
13.1. In the event of a non-attributable failure on the part of SMART PARKS to comply with the Agreement, the approximate delivery periods specified in the Agreement will be extended by the period during which SMART PARKS has been obstructed from complying with its obligations by the non-attributable failure.
13.2. A failure that is not attributable to SMART PARKS shall be understood to mean any event independent of the will of SMART PARKS that temporarily or permanently obstructs or delays compliance as well as, insofar as not covered by the foregoing, war, the threat of war, civil war, disorder, acts of war, fire, water damage, flooding, strikes, sit-ins, lockouts, import and export restrictions, government measures, mechanical faults, disruptions to the energy supply and all circumstances at SMART PARKS’s business and the businesses of third parties from which SMART PARKS must obtain some or all of the necessary equipment or raw materials, as well as in storage or during transportation whether carried out by the company itself or otherwise, in addition to all other causes that are not due to the fault of SMART PARKS and are not considered to be at the risk of SMART PARKS.
13.3. If force majeure arises when the Agreement has already been partially executed and, as a result of the force majeure, the remaining deliveries become entirely impossible or will be delayed by more than four months, the Client will be entitled either to retain the goods that have already been delivered and pay the price due for them, or to regard the Agreement, including the part thereof that has already been executed, as having been terminated subject to the obligation to return the delivered goods to SMART PARKS at the Client’s own risk and account, provided that the Client can demonstrate that it can no longer effectively use those goods that have already been delivered due to the non-delivery of the remainder of the goods.
13.4. If SMART PARKS fails to comply with any of its obligations as a result of force majeure, SMART PARKS will never be liable to the Client for losses arising in any way whatsoever and will be entitled, without judicial intervention, to opt either to suspend the execution of the Agreement for no more than six months or to dissolve the Agreement in full or in part, in both cases without being obliged to pay any compensation.
14. Applicable Law, Settlement of Disputes
14.1. All Agreements to which these terms and conditions are fully or partially applicable shall be governed exclusively by Dutch law.
14.2. Any dispute that may arise as a result of an Agreement to which these terms and conditions are fully or partially applicable or any further Agreement, or from further Agreements that may follow from such an Agreement, shall be adjudicated by the Arbitration Board for the Construction Industry.