Article 1. GENERAL
1.1. These terms apply to all offers, agreements, assignments, and services from Cool Roof Coatings. The general terms and conditions can be found at www.coolroofcoatings.nl;
1.2. Additions to or deviations from these terms must be agreed upon in writing and apply only to the agreement for which they were made;
1.3. Differing general terms, including the (purchasing) terms of the counterparty, are not accepted by Cool Roof Coatings unless agreed otherwise in writing and confirmed by Cool Roof Coatings;
1.4. Cool Roof Coatings' codes of conduct and professional rules form part of these general terms and conditions. The counterparty agrees to always respect the resulting obligations.
Article 2. OFFERS
2.1. All offers are non-binding and have a validity period of 30 days, unless agreed otherwise in writing. An offer that includes a deadline can nevertheless be revoked by Cool Roof Coatings, even after receipt of the order, provided this is done within 5 business days of receiving that order;
2.2. Prices, quantities, sizes, dimensions, etc. listed in price lists, quotes, drawings, and other documents are for informational purposes only. They are approximate indications and do not bind Cool Roof Coatings;
2.3. Offers or quotes do not automatically apply to future assignments;
2.4. The quote includes a description of the work to be performed and materials to be supplied, detailed enough to allow the counterparty to properly assess the offer. The offer to the counterparty provides insight into the price and indicates whether there is a fixed contract sum or whether the work will be performed on a time-and-materials basis;
- Contracted work: Performing work agreed between the counterparty and Cool Roof Coatings for a total amount determined in advance;
- Time-and-materials work: A fee agreed in advance for performing services for one hour by one person. The total number of hours worked on behalf of the counterparty is invoiced, including time for travel to and from the job site;
2.5. All offers are based on the work and deliveries being carried out under normal weather conditions and during Cool Roof Coatings' normal working hours;
2.6. The quote must be signed by the counterparty and returned to Cool Roof Coatings. If the quote is not signed, Cool Roof Coatings assumes that the quote reflects what the parties have agreed. In particular, the absence of a signature does not affect the binding force of the offer and its acceptance;
2.7. If a sample, model, or image has been shown or provided to the counterparty, it is presumed to have been shown only as an indication, without the goods having to match it, unless it is expressly agreed that the goods will correspond to it;
Article 3. AGREEMENTS
3.1. An agreement is only deemed to have been validly concluded after Cool Roof Coatings has confirmed the order in writing or has begun executing the order, which includes (among other things) purchasing materials for the order in question or starting up production for it. The content of the agreement is determined by Cool Roof Coatings' quote and/or order confirmation and these general terms and conditions;
3.2. Cool Roof Coatings has a duty to use its best efforts toward the counterparty and not a duty to achieve a specific result. Technical advice is provided to the best of our knowledge. Responsibility for applying this advice, however, remains entirely with the counterparty;
3.3. If, after the order is placed, the counterparty has additional requests during execution that are not included in the order, this additional work will be invoiced based on the fixed hourly rate, in addition to the agreed principal sum, unless agreed otherwise. Any order for additional work must be confirmed in writing by the counterparty. Changes to the original order, of any kind, must be confirmed in writing by Cool Roof Coatings;
3.4. Any additional work outside the scope of the order will be invoiced by Cool Roof Coatings as additional work at the hourly rate in effect at that time, including profit margin. The absence of a written order for additional work does not affect the counterparty's right to performance or Cool Roof Coatings' right to settle the additional work.
Article 4. EXECUTION OF THE AGREEMENT
4.1. Cool Roof Coatings will execute the agreement to the best of its knowledge and ability and in accordance with the standards of good craftsmanship and the state of the art known at that time. Where necessary, and only on explicit request, Cool Roof Coatings will keep the counterparty informed of progress;
4.2. If and to the extent that proper execution of the agreement requires it, Cool Roof Coatings has the right to have certain parts of the agreement performed by third parties;
4.3. The counterparty ensures that all data Cool Roof Coatings indicates as necessary, or that the counterparty should reasonably understand to be necessary for executing the agreement, is provided to Cool Roof Coatings on time.
Article 5. CONFIDENTIALITY
Both parties are obliged to keep confidential all confidential information they have obtained from each other or from another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party or follows from the nature of the information. Without Cool Roof Coatings' consent, the counterparty will likewise not make statements to third parties about approach, methods, or reports.
Article 6. DELIVERY TIME, DELIVERY
6.1. The delivery or completion date stated in the order confirmation or agreed upon is not a strict deadline and is given only as an approximation, even if expressly accepted by the counterparty. In the event of late delivery or completion, Cool Roof Coatings is therefore only in default after receiving written notice of default;
6.2. The stated or agreed delivery or completion date is automatically extended by, but not limited to, the period(s) during which:
- there is a delay in manufacturing, shipment, production, or any other circumstance that temporarily prevents execution, regardless of whether this is attributable to Cool Roof Coatings;
- the counterparty fails to perform its obligations toward Cool Roof Coatings, or there is well-founded fear that it will fail to do so, regardless of whether the reasons for that are well-founded.
6.3. If the counterparty fails to take delivery of the goods, the goods will be stored at the counterparty's expense and risk;
6.4. Transport of the goods is at the counterparty's expense and risk, unless agreed otherwise in writing;
6.5. Any processing of the delivered goods is also at the counterparty's risk;
6.6. Cool Roof Coatings is entitled to deliver or perform in installments. Each partial delivery or partial performance shall be considered an independent delivery / performance;
6.7. For delivery / performance on call, Cool Roof Coatings is entitled to immediately prepare the entire order. Unless agreed otherwise, changes to call-off orders are not permitted up to delivery.
Article 7. PRICES
7.1. All price quotes and the prices Cool Roof Coatings charges are the prices in effect at the time of the offer or the formation of the agreement, exclusive of VAT, and ex works, unless agreed otherwise in writing;
7.2. If, after the agreement is concluded, taxes and/or other factors that determine the price of the services change, Cool Roof Coatings is entitled to pass on these price changes. Price changes of more than 10% give the counterparty the right to terminate the agreement, provided this is done in writing and within seven days of receiving the relevant notice. Such termination does not entitle the counterparty to any compensation for damages.
Article 8. PAYMENT
8.1. Payment must be made within 14 days of the invoice date. If other payment terms have been agreed, these will be stated on the invoice;
8.2. Invoicing may be done based on advance invoices, possibly with interim invoice(s) and a final invoice, depending on the size of the order and only by mutual agreement;
8.3. Invoicing must be paid in three parts:
- 40% of the total invoice amount when the order is placed.
- 50% of the total invoice amount at the start of the project.
- 10% of the total invoice amount after delivery / completion of the work;
8.4. The counterparty is in default after the payment term referred to in paragraph 1 of this article, without any notice of default being required, regardless of whether exceeding it can be attributed to the counterparty;
8.5. Without prejudice to its other rights, Cool Roof Coatings is then entitled to charge interest on the outstanding amount at 1.5% per month or part of a month, from the relevant due date;
8.6. Incoming payments are applied to the oldest outstanding items, interest, and costs, even if the counterparty states otherwise.
Article 9. CHANGES / CANCELLATION
In the event of changes to the order or cancellation by the counterparty before the start of the order, all costs incurred by Cool Roof Coatings in connection with the order, as well as lost profit, are immediately due and payable, with a minimum of 10% of the principal sum, plus where applicable any damages suffered by Cool Roof Coatings as a result of the change / cancellation.
Article 10. INSPECTION and TRANSFER OF RISK
10.1. The work is inspected by Cool Roof Coatings prior to delivery. The counterparty has the right to have the goods inspected by third parties before delivery, at its own expense;
10.2. The risk of loss of or damage to the goods that are the subject of the agreement passes to the counterparty at the moment they are legally and/or physically delivered to the counterparty and thereby placed in the control of the counterparty or a third party designated by the counterparty;
Article 11. INSPECTION AND APPROVAL
11.1. Inspection takes place as soon as possible, but no later than 5 days after the day referred to above. The inspection is carried out by the counterparty in the presence of Cool Roof Coatings and is intended to determine whether Cool Roof Coatings has fulfilled its obligations under the existing agreement;
11.2. Within 5 days of inspecting the work, the counterparty must inform Cool Roof Coatings in writing whether the work is approved or not. In the first case, any minor defects must be listed; in the second case, the defects that are the reason for withholding approval. If the work is approved, the counterparty must sign for approval;
11.3. The work is also deemed to have been approved if and to the extent that it is put into use. The day on which the work or any part of it is put into use is considered the day of approval of the work or the relevant part;
11.4. Minor defects that can be remedied are not grounds for withholding approval, provided they do not prevent the work from being put into use;
Article 12. RETENTION OF TITLE
12.1. All goods and materials supplied by Cool Roof Coatings, possibly including designs, sketches, drawings, etc., remain the property of Cool Roof Coatings until the counterparty has fulfilled all obligations under the agreements;
12.2. The counterparty is not authorized to pledge or otherwise encumber the goods subject to retention of title;
12.3. If third parties seize the goods supplied subject to retention of title or seek to establish or enforce rights to them, the counterparty is obliged to inform Cool Roof Coatings as quickly as can reasonably be expected;
12.4. The counterparty undertakes to insure the goods supplied subject to retention of title and to keep them insured against fire, explosion, and water damage, as well as against theft, and to make the policy for this insurance available for inspection on first request;
12.5. Goods supplied by Cool Roof Coatings that fall under retention of title pursuant to paragraph 1 of this article may only be resold in the course of normal business operations and may never be used as a means of payment;
12.6. In the event that Cool Roof Coatings wishes to exercise the property rights described in this article, the counterparty hereby grants Cool Roof Coatings or third parties designated by it unconditional and irrevocable permission to enter all places where Cool Roof Coatings' property is located and to take back the goods, including, where applicable, after any required dismantling.
Article 13. WARRANTIES AND COMPLAINTS
13.1. Cool Roof Coatings warrants that the manufacturer's warranty applies to all products supplied by Cool Roof Coatings and manufactured by third parties, as set out in the warranty certificate issued to the counterparty;
13.2. The warranty obligation lapses in the event of improper use, incorrect handling, insufficient maintenance, and when the technical instructions for use are not observed;
13.3. Complaints about the execution of the agreement must be reported by the counterparty to Cool Roof Coatings within 8 days of completion of the agreement. After this period, complaints will no longer be processed. Cool Roof Coatings will inform the counterparty in writing whether the complaint is well-founded or unfounded within 18 business days of receiving the complaint. The notice of default must contain as detailed a description of the shortcoming as possible, so that Cool Roof Coatings is able to respond adequately;
13.4. If a complaint is well-founded, Cool Roof Coatings will, at its discretion, either offer a new agreement or grant a price reduction;
13.5. Complaints are not possible if:
- the goods supplied show one or more imperfections or deviations that fall within reasonable tolerance;
- the damage was caused by the counterparty's negligence or by the counterparty acting contrary to instructions, directions, and advice from Cool Roof Coatings;
- the goods supplied have been used for a purpose other than that for which they are normally intended, or have been used, stored, or transported improperly;
- work has been performed on the executed work by third parties without Cool Roof Coatings' written permission;
- the counterparty has not fulfilled its obligations to Cool Roof Coatings (financial or otherwise).
Article 14. SUSPENSION AND TERMINATION
14.1. Cool Roof Coatings is authorized to terminate the agreement with immediate effect, without judicial intervention, in whole or in part, or to suspend execution, without prejudice to its other rights (to performance and/or damages), if:
- the counterparty fails to fulfill the obligations under the agreement, or fails to fulfill them in full;
- after the conclusion of the agreement, circumstances come to Cool Roof Coatings' attention that give good reason to fear that the counterparty will not fulfill its obligations. If there is good reason to fear that the counterparty will only partially or not properly fulfill its obligations, suspension is only permitted to the extent that the shortcoming justifies it;
- at the conclusion of the agreement, the counterparty was asked to provide security for fulfilling its obligations under the agreement, and this security is not provided or is insufficient;
- the counterparty dies, files for suspension of payments, files for bankruptcy, or has had bankruptcy proceedings filed against it;
- the counterparty's business is shut down or liquidated;
- a private settlement is offered, or any of the counterparty's assets are seized;
14.2. Furthermore, Cool Roof Coatings is authorized to (have) the agreement terminated if circumstances arise that are such that performance of the agreement is impossible — or, by standards of reasonableness and fairness, can no longer be required — or if circumstances otherwise arise that are such that the unchanged continuation of the agreement cannot reasonably be expected;
14.3. If the agreement is terminated, Cool Roof Coatings' claims against the counterparty are immediately due and payable. If Cool Roof Coatings suspends performance of its obligations, it retains its rights under the law and the agreement;
14.4. Cool Roof Coatings always retains the right to claim damages.
Article 15. LIABILITY
15.1 Cool Roof Coatings is not liable for damages of any kind if Cool Roof Coatings has relied on incorrect and/or incomplete data provided by the counterparty;
15.2 Cool Roof Coatings is not liable for damages arising from any failure to fulfill its obligations toward the counterparty, unless there is intent or gross negligence on the part of Cool Roof Coatings or its managing employees;
15.3. The counterparty is responsible for examining the goods supplied for proper applicability for the intended purpose. The risk of loss of or damage to the goods that are the subject of the agreement passes to the counterparty at the moment they are legally and/or physically delivered to the counterparty and thereby placed in the control of the counterparty or a third party designated by the counterparty;
15.4. Cool Roof Coatings is not liable for damages caused by improper processing of the goods supplied or by non-applicability of the supplied product and/or service;
15.5. If Cool Roof Coatings should be liable, this liability is limited to what is set out in this provision;
15.6. If Cool Roof Coatings is liable for direct damages, that liability is limited to a maximum equal to the invoiced amount, or that part of the order to which the liability relates. Liability is at all times limited to the amount of the payment provided by Cool Roof Coatings' insurer in the case at hand;
15.7. Direct damages are understood to mean only:
- the reasonable costs of determining the cause and scope of the damage, insofar as the determination relates to damage as defined in these terms;
- any reasonable costs incurred to bring Cool Roof Coatings' faulty performance into conformity with the agreement, unless these cannot be attributed to Cool Roof Coatings;
- reasonable costs incurred to prevent or limit damage, insofar as the counterparty demonstrates that these costs have led to a reduction in direct damages as defined in these general terms and conditions;
15.8. Cool Roof Coatings is never liable for indirect damages, including consequential damages, lost profits, missed savings, and damages caused by business interruption.
15.9. Cool Roof Coatings is never liable for damages arising from work performed by third parties engaged by Cool Roof Coatings;
15.10. Cool Roof Coatings is not liable for functionally unsuitable materials and/or constructions on which Cool Roof Coatings is to perform work;
Article 16. INDEMNITIES
16.1. The counterparty indemnifies Cool Roof Coatings against third-party claims, including those concerning intellectual property rights to materials or data provided by the counterparty and used in the execution of the agreement;
16.2. The counterparty is obliged to indemnify Cool Roof Coatings against any liability toward third parties insofar as this arises from or is related to the order, unless Cool Roof Coatings' liability is caused by intent or gross negligence.
Article 17. FORCE MAJEURE
17.1. Parties are not obliged to fulfill any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault and is not for their account under the law, a legal act, or generally accepted views;
17.2. In these general terms and conditions, force majeure means, in addition to what is understood by it in law and case law, all external causes, foreseen or unforeseen, over which Cool Roof Coatings has no influence but which prevent Cool Roof Coatings from fulfilling its obligations. Strikes within Cool Roof Coatings' company are included in this;
17.3. Cool Roof Coatings also has the right to invoke force majeure if the circumstance preventing (further) performance occurs after Cool Roof Coatings should have fulfilled its obligations;
17.4. In the event of force majeure, the customer is not entitled to terminate the agreement or claim damages;
17.5. Insofar as Cool Roof Coatings has, at the time the force majeure occurs, already partially fulfilled its obligations under the agreement or will be able to do so, and the part fulfilled or to be fulfilled has independent value, Cool Roof Coatings is entitled to invoice the part already fulfilled or to be fulfilled separately. The counterparty is obliged to pay this invoice as if it were a separate agreement.
Article 18. PARTIAL INVALIDITY
If one or more provisions of this agreement with the counterparty are not valid, or not entirely valid, the remaining provisions remain fully in force. The invalid provisions are replaced by an appropriate arrangement that comes as close as possible, in a legally effective manner, to the parties' intent and the economic result they pursued.
Article 19. PLACE OF PERFORMANCE, GOVERNING LAW, COMPETENT COURT
19.1. Cool Roof Coatings' place of business is the place where the counterparty must fulfill its obligations to Cool Roof Coatings, unless mandatory provisions provide otherwise;
19.2. All offers and agreements of Cool Roof Coatings are governed exclusively by Dutch law;
19.3. All disputes that arise from the agreement concluded between the counterparty and Cool Roof Coatings, or from any further agreements that may result from it, will be settled by the competent court.
Article 20. AMENDMENT, INTERPRETATION, AND DEPOSIT OF THE TERMS
20.1. These terms have been deposited with the Chamber of Commerce in Almere;
20.2. In the event of interpretation of the content and meaning of these general terms and conditions, the Dutch text is always decisive;
20.3. The most recently deposited version, or the version in effect at the time the agreement was concluded, applies in all cases.
