These terms and conditions apply to every offer, quotation and agreement between Orange Planet BV, registered with the Brabant Chamber of Commerce under number 17277857, hereinafter referred to as: “Orange Planet”, and a Counterparty, insofar as these terms and conditions are not expressly stated by the parties. and deviated in writing. The Counterparty of Orange Planet includes in particular any buyer or supplier who has accepted the validity of these general terms and conditions in writing or otherwise.
These terms and conditions also apply to agreements with Orange Planet, for the execution of which Orange Planet must involve third parties.
The applicability of any purchase or other conditions of the Other Party is expressly rejected.
If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or should be annulled, the other provisions in these general terms and conditions will remain fully applicable. Orange Planet and the Other Party will then enter into consultation in order to agree on new provisions to replace the invalid or nullified provisions, whereby the purpose and purport of the original provisions are taken into account as much as possible.
If there is any uncertainty about the interpretation of one or more provisions of these general terms and conditions, the explanation must take place 'in the spirit' of these provisions.
6. If a situation arises between the parties that is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
If Orange Planet does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Orange Planet would lose the right to demand strict compliance with the provisions of these terms and conditions in other cases. .
In the event of a conflict between the provisions in the agreement and these general terms and conditions, the agreement will prevail
Article 2 Quotations and offers
All quotations and offers from Orange Planet are without obligation, unless a term for acceptance is stated in the quotation. A quotation or offer lapses if the product to which the quotation or offer relates is no longer available in the meantime.
Orange Planet cannot be held to its quotations or offers if the Other Party can reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or clerical error.
The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, Orange Planet is not bound by it. In that case, the agreement will not be concluded in accordance with this deviating acceptance, unless Orange Planet indicates otherwise.
A composite quotation does not oblige Orange Planet to perform part of the assignment against a corresponding part of the stated price.
Offers or quotations do not automatically apply to future orders.
Article 3 Duration of the contract; delivery terms, implementation and amendment of the agreement
The agreement between Orange Planet and the Other Party becomes
entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.
If a term has been agreed or stated for the completion of certain activities or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Other Party must therefore give Orange Planet written notice of default. Orange Planet must be offered a reasonable term to still execute the agreement.
If Orange Planet requires information from the Other Party for the implementation of the agreement, the implementation period will not commence until the Other Party has made this information available to Orange Planet correctly and completely.
Delivery takes place ex works of Orange Planet. From the moment that the goods have left Orange Planet's company, they are at the expense and risk of the Other Party. The Other Party is obliged to take delivery of the goods when they are made available to it. If the Other Party refuses or fails to provide information or instructions necessary for delivery, Orange Planet is entitled to store the goods at the expense and risk of the Other Party.
Orange Planet has the right to have certain activities performed by third parties.
Orange Planet is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
If the agreement is executed in phases, Orange Planet can suspend the execution of those parts that belong to a subsequent phase until the Other Party has approved the results of the preceding phase in writing and has paid the invoices for this preceding phase in full.
If during the execution of the agreement it appears that it is necessary for a proper execution thereof to change or supplement it, then the parties will proceed to adapt the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the Other Party, of the competent authorities, et cetera, is changed and the agreement is amended in terms of quality and / or quantity as a result, this may also have consequences. for what was originally agreed. As a result, the originally agreed amount can be increased or decreased. Orange Planet will quote this in advance as much as possible. The originally stated term of execution may also be changed by an amendment to the agreement. The Other Party accepts the possibility of changing the agreement, including the change in price and term of execution.
If the agreement is amended, including an addition, Orange Planet is entitled to implement it only after approval has been given by the person authorized within Orange Planet and the Other Party has agreed to the price stated for the changed implementation and other conditions, including the then to be determined time when they will be implemented. Failure to execute or not immediately implement the amended agreement does not constitute default on the part of Orange Planet and is also no ground for the Other Party to terminate the agreement. Without being in default, Orange Planet can refuse a request to change the agreement if this could have consequences in terms of quality and / or quantity, for example for the work to be performed or goods to be delivered in that context.
If the Other Party should be in default in the proper fulfillment of what it is obliged to do towards Orange Planet, then the Other Party is liable for all damage (including costs) that arises directly or indirectly on the part of Orange Planet.
If Orange Planet agrees on a fixed price with the Other Party, Orange Planet is nevertheless entitled at all times to increase this price without the Other Party being entitled to dissolve the agreement for that reason, if the increase in the price ensues. from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that could not reasonably have been foreseen when the agreement was entered into.
If the price increase, other than as a result of an amendment to the agreement, is more than 10% and takes place within three months after the conclusion of the agreement, then only the Counterparty that can rely on Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to the to dissolve the agreement by means of a written statement, unless Orange Planet is then still willing to execute the agreement on the basis of what was originally agreed, or if the price increase arises from a power or an obligation resting on Orange Planet under the law or if stipulated is that the delivery will take place longer than three months after the purchase.
Article 4 Suspension, dissolution and early termination of the agreement
Orange Planet is authorized to suspend the fulfillment of the obligations or to dissolve the agreement without being obliged to pay any damage that the Other Party suffers as a result, if: - the Other Party does not, not fully or not timely , fulfill the obligations under the agreement. fulfills; - after conclusion of the agreement, Orange Planet becomes aware of circumstances that give good reason to fear that the Other Party will not fulfill its obligations; - the Other Party was asked to provide security for the fulfillment of its obligations under the agreement when the agreement was concluded and this security is not provided or insufficient; - if due to delay on the part of the Other Party, Orange Planet can no longer be expected to fulfill the agreement under the originally agreed conditions.
Furthermore, Orange Planet is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible or if otherwise circumstances arise that are of such a nature that unaltered maintenance of the agreement cannot reasonably be assumed by Orange Planet. are required.
If the agreement is dissolved, Orange Planet's claims against the Other Party are immediately due and payable. If Orange Planet suspends the fulfillment of its obligations, it will retain its rights under the law and agreement.
If Orange Planet proceeds to suspension or dissolution, it is in no way obliged to compensate damage and costs arising in any way.
If the agreement is terminated prematurely by Orange Planet, Orange Planet will, in consultation with the Other Party, arrange for the transfer of work still to be performed to third parties. This unless the cancellation is attributable to the Other Party. If the transfer of the work entails additional costs for Orange Planet, these will be charged to the Other Party. The Other Party is obliged to pay these costs within the specified period, unless Orange Planet indicates otherwise.
In the event of liquidation, of (applying for) a moratorium of payments or bankruptcy, of enforceable seizure at the expense of the Other Party, of debt restructuring or any other circumstance as a result of which the Other Party can no longer freely dispose of its assets, Orange Planet is free to to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or compensation. The claims of Orange Planet on the Other Party are in that case immediately due and payable.
If the Other Party cancels a placed order in whole or in part, then the items ordered or prepared for this, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the Other Party.
Article 5 Force majeure
Orange Planet is not obliged to fulfill any obligation towards the Other Party if it is prevented from doing so as a result of a circumstance that is not attributable to fault, and is not accountable for by law, a legal act or generally accepted views. .
In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which Orange Planet cannot exert influence, but as a result of which Orange Planet is unable to fulfill its obligations. to come. This includes in any case malfunctions or failure of the internet, malfunctions or failure of the telecommunication infrastructure, power cuts, civil commotion, mobilization, war, transport disruptions, strike, lockout, business interruptions (strikes in the company of Orange Planet and / or third parties included), stagnation in supply, fire, flooding, import and export restrictions and in the event that Orange Planet is unable to deliver due to its own suppliers, regardless of the reason. Orange Planet also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after Orange Planet should have fulfilled its obligation.
Orange Planet can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement, without obligation to pay compensation for damage by Orange Planet.
Insofar as Orange Planet has already partially fulfilled or will be able to fulfill its obligations under the agreement at the time of the commencement of force majeure, and the part fulfilled or to be fulfilled respectively has independent value, Orange Planet is entitled to fulfill or fulfill the obligations already fulfilled respectively come to be invoiced separately. The Other Party is obliged to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
Payment must be made within 30 days after the invoice date, in a manner to be indicated by Orange Planet in the currency in which the invoice is made, unless otherwise indicated in writing by Orange Planet. Orange Planet is entitled to invoice periodically.
If the Other Party fails to pay an invoice in time, the Other Party is in default by operation of law. The Other Party will then owe interest of 1% per month, unless the statutory (commercial) interest is higher, in which case the statutory (commercial) interest is due. The interest on the due amount will be calculated from the moment that the Other Party is in default until the moment the full amount owed is paid.
Orange Planet has the right to have the payments made by the Counterparty in the first place be deducted from the costs, then against the interest that has become due and finally against the principal sum and the current interest.
Orange Planet can, without being in default as a result, refuse an offer for payment if the Other Party indicates a different order for the allocation of the payment. Orange Planet can refuse full payment of the principal sum, if the open and current interest and collection costs are not also paid.
The Other Party is never entitled to suspend or set off the amount it owes Orange Planet.
Objections to the amount of an invoice do not suspend the payment obligation. The Other Party that cannot invoke section 6.5.3 is also not entitled to suspend payment of an invoice for any other reason.
If the Counterparty is in default or omission in the (timely) fulfillment of its obligations, then all reasonable costs incurred in obtaining settlement out of court will be borne by the Counterparty. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, with a minimum of 15% of the amount to be claimed, or, if that is lower, with a minimum of € 1,000. However, if Orange Planet has incurred higher collection costs that were reasonably necessary, the costs actually incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party also owes interest on the collection costs owed.
Orange Planet is always entitled to set off claims of Orange Planet on the Other Party - whether or not due and payable - against claims that the Other Party has on Orange Planet under the agreement. Insofar as any permission on the part of the Other Party is required, this permission is deemed to have been granted unconditionally and irrevocably to Orange Planet.
Article 7 Retention of title
All goods delivered by Orange Planet in the context of the agreement remain the property of Orange Planet until the Other Party has properly fulfilled all obligations under the agreement (s) concluded with Orange Planet.
Goods delivered by Orange Planet that fall under the retention of title pursuant to paragraph 1, may not be resold other than in the normal business operations of the Other Party and may never be used as a means of payment. The goods falling under the retention of title cannot be pledged or encumbered in any other way.
The Other Party must always do everything that may reasonably be expected of it to safeguard Orange Planet's property rights.
If third parties seize the goods delivered under retention of title or if they wish to establish or assert rights thereon, the Other Party is obliged to immediately notify Orange Planet thereof.
The Other Party undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage, against damage as a result of destruction as well as against theft and to make the policy of this insurance available to Orange Planet for inspection upon first request. In the event of any insurance payment, Orange Planet is entitled to these insurance payments. Insofar as necessary, the Other Party undertakes to Orange Planet in advance to cooperate with everything that is or appears to be necessary or desirable in that context.
In the event that Orange Planet wishes to exercise its property rights referred to in this article, the Other Party gives unconditional and irrevocable permission in advance to Orange Planet and third parties to be designated by Orange Planet to enter all those places where the properties of Orange Planet are located and to take those things back.
Article 8 Guarantees, research and complaints, limitation period
The goods to be delivered by Orange Planet meet the usual requirements and standards that can reasonably be set at the time of delivery and that apply to normal use in the Netherlands. In case of use outside the Netherlands, the Other Party must verify itself whether the use of the goods is suitable for use there and meet the conditions set for it. In that case, Orange Planet can set other guarantee and other conditions with regard to the goods to be delivered or work to be performed.
The guarantee referred to in paragraph 1 of this article applies upon delivery, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. If the guarantee provided by Orange Planet concerns a good that was produced by a third party , then the guarantee is limited to that provided by the producer of the good, unless stated otherwise.
Any form of warranty will lapse if a defect has arisen as a result of or ensues from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Other Party and / or by third parties if, without written permission from Orange Planet , the Other Party or third parties have made or attempted to make changes to the item, other items have been attached to it that do not need to be attached to it or if they have been processed, processed or used in a manner other than the prescribed manner. The Other Party is also not entitled to a warranty if the defect has arisen due to or is the result of circumstances beyond Orange Planet's control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) et cetera.
The Other Party is obliged to inspect the delivered goods or have them inspected immediately at the moment that the goods are made available to it or the relevant activities have been carried out. In doing so, the Counterparty should investigate whether the quality and / or quantity of the delivered goods corresponds with what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to Orange Planet in writing within seven days of delivery. Any invisible defects must be reported to Orange Planet in writing immediately, but in any case no later than fourteen days after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that Orange Planet is able to respond adequately. The Other Party must give Orange Planet the opportunity to investigate a complaint or have it investigated.
If the Other Party makes a timely complaint, this does not suspend its payment obligation. In that case, the Other Party also remains obliged to purchase and pay for the otherwise ordered items.
If a defect is not reported in writing within the periods as stated in this article, the Other Party is no longer entitled to repair, replacement or compensation.
If it is established that an item is defective and a timely complaint has been made in this regard, Orange Planet will notify the defective item within a reasonable period of time after it has been returned or, if return is not reasonably possible, in writing with regard to the defect by the Other Party, at the option of Orange Planet, or arrange for its repair or pay a replacement fee for this to the Other Party. In the event of replacement or compensation, the Other Party is obliged to return the replaced good to Orange Planet and to transfer ownership thereof to Orange Planet, unless Orange Planet indicates otherwise.
If it is established that a complaint is unfounded, then the costs (have) arisen as a result, including the research costs, incurred by Orange Planet as a result, will be fully borne by the Other Party.
After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Other Party.
Contrary to the statutory limitation periods, the limitation period of all claims and defenses against Orange Planet and the third parties involved by Orange Planet in the implementation of an agreement is one year.
Article 9 Liability
If Orange Planet should be liable, then this liability is excluded in the event of incorrect use or failure to follow what is included in the instructions for use belonging to the case and in other cases this liability is limited to what is further regulated in this provision.
Orange Planet is not liable for damage, of whatever nature, caused by Orange Planet relying on incorrect and / or incomplete information provided by or on behalf of the Other Party.
If Orange Planet is liable for any damage, then Orange Planet's liability is limited to a maximum of the invoice value of the order, or at least to that part of the order to which the liability relates.
Orange Planet's liability is in any case always limited to the amount that Orange Planet's liability insurer pays out in the relevant case.
Orange Planet is only liable for direct damage.
Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to ensure that Orange Planet's defective performance is agreement, insofar as these can be attributed to Orange Planet and reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.
Orange Planet is never liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Orange Planet or its supervisors and / or subordinates.
Article 10 Transfer of risk
The risk of loss, damage or depreciation transfers to the Other Party at the moment when goods are brought under the control of the Other Party to the Other Party.
Article 11 Indemnity
The Other Party indemnifies Orange Planet against any claims from third parties who suffer damage in connection with the implementation of the agreement and the cause of which cannot be attributed to Orange Planet.
If Orange Planet should be addressed by third parties on that basis, the Other Party is obliged to assist Orange Planet both in and out of court and to do everything that may be expected of it in that case without delay. If the Other Party fails to take adequate measures, Orange Planet is entitled to do so itself without notice of default. All costs and damage on the part of Orange Planet and third parties that arise as a result will in that case be fully at the expense and risk of the Other Party.
Article 12 Intellectual property
Orange Planet reserves the rights and powers that accrue to it on the basis of the Copyright Act and other intellectual laws and regulations. Orange Planet has the right to use the knowledge gained through the execution of an agreement for other purposes, insofar as no strictly confidential information of the Other Party is disclosed to third parties.
Article 13 Applicable law and disputes
All legal relationships to which Orange Planet is a party are exclusively governed by Dutch law, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The court in Orange Planet's place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, Orange Planet has the right to submit the dispute to the competent court according to the law.
The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 14 Location and change of conditions
These conditions have been filed with the Chamber of Commerce.
The most recently filed version or the version that applied at the time of the creation of the legal relationship with Orange Planet is always applicable.
The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.
