Terms and conditions
article 1. General
1.1 These terms and conditions apply to every offer, quotation and agreement between BPath Energy, hereinafter referred to as “User”, and a Counterparty to which User has declared these terms and conditions applicable, insofar parties have not deviated explicitly and in writing from these terms and conditions.
1.2 The present terms and conditions also apply to agreements with User, for which User has to involve third parties.
1.3 These general terms and conditions also apply to employees and management of User.
1.4 Applicability of any purchase or other conditions of the Counterparty is explicitly rejected.
1.5 If one or more provisions in these general terms and conditions at any time are wholly or partially void or destroyed, then the other provisions in these general conditions remain fully applicable. User and Counterparty will then deliberate in order to agree on new provisions to replace the null and void or nullified provisions, whereby as much as possible the purpose and intent of the original provisions will be observed.
1.6 If there is a lack of clarity regarding the interpretation of one or more provisions of these general terms and conditions, then the explanation must take place ‘in the spirit’ of these provisions.
If a situation arises between parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
1.7 If User does not always demand strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that User would in any way lose the right to demand strict compliance with the provisions of these conditions in other cases.
article 2. Quotations and offers
2.1 All quotations and offers by User are without obligation, unless a deadline for acceptance has been set in the offer. A quotation or offer expires if the product to which the quotation or offer relates is no longer available in the meantime.
2.2 User cannot be held to his quotations or offers if Counterparty can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or error.
2.3 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.
2.4 If acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, User is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless User indicates otherwise.
2.5 A composite price quotation does not oblige User to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
2.6 Images and stated dimensions and specifications, included in price lists, flyers and electronic data carriers are not binding. Drawings, schemes and images provided by the User are only for clarification; they remain the property of User and may not be copied or handed over to third parties without our written consent and must be returned immediately upon request. User accepts no liability for errors in and deviations from images, drawings, diagrams, capacities and the like occurring in price lists, offers, order confirmations, invoices, website and electronic data carriers.
article 3. Contract duration; delivery periods, execution and amendment of the agreement
3.1 The agreement between the User and the Counterparty is for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
3.2 The entrepreneur will provide the consumer, who does not exercise his profession or business, for the product or service the following information, in writing or in such a way that it can be stored by the consumer in an accessible manner on a durable data carrier: a) address of the establishment of the entrepreneur where the consumer can go with complaints; b) conditions under which and the manner in which the consumer can make use of the right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal; c) information about existing after-sales service and guarantees; 3.3 If the entrepreneur has committed himself to delivering a series of products or services, the provision in the previous paragraph only applies to the first delivery.
3.4 If a period has been agreed or stated for the completion of certain work or for the delivery of certain items, this is never a fatal term. In the event that a period is exceeded, Counterparty must therefore give User notice of default in writing. The User must be offered a reasonable period in which the agreement can be executed.
3.5 If the User requires information from the Counterparty for the execution of the agreement, the performance period shall not commence earlier than after the Counterparty has made it available to the User correctly and completely.
3.6 Delivery will be made from the User’s company. The Counterparty is obliged to take delivery of the goods at the moment they are available. If the Counterparty rejects delivery or is negligent with providing information or instructions that are necessary for delivery, the User is entitled to store the goods at the expense and risk of the Counterparty. The latter also applies to items in which assembly work has been carried out by the User, and the Buyer has been informed in writing that they are ready for collection by the Buyer.
3.7 If and insofar as items are sent by the User to the Counterparty, this will be at the risk of the Counterparty, as from the moment of shipment. Even if free delivery has been agreed on, the buyer is liable for all damage related to the transport.
3.8 User has the right to have certain work done by third parties.
3.9 The User is entitled to execute the agreement in various phases and to invoice the part thus executed separately.
3.10 If the agreement is executed in phases, the User can suspend the execution of those parts that belong to a following phase until the Counterparty has approved the results of the preceding phase in writing.
3.11 If it becomes clear during the execution of the agreement, that for a proper execution of the agreement it is necessary to change or supplement it, parties shall proceed to adjusting the agreement in time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Counterparty, of the competent authorities, etc. is changed and the agreement is thereby amended qualitatively and/or quantitatively, this may also have consequences. for what was originally agreed. As a result, the originally agreed amount can be increased or decreased. User will make a new quotation as much as possible in advance. In case of an amended agreement, the originally stated term of execution can also be changed. The Counterparty accepts the possibility of changing the agreement, including the change in price and term of execution.
3.12 If and when the agreement is changed, including an addition,the User is entitled to execute this only after it has been approved by the (person authorized by the) User, and the Counterparty has agreed to the amended price and conditions specified for the execution, including the new time determined for execution. The non-execution or non-immediate execution of the amended agreement does not constitute a breach of contract by the User and does not constitute grounds for the Counterparty to terminate the agreement. Without being in default, the User may refuse a request to amend the agreement if this could have qualitative and / or quantitative consequences, for example for the work to be performed or the goods to be delivered.
3.13 If the Counterparty is in default in the proper performance of what he is obliged to User, then the Counterparty is liable for all direct or indirect damage (including costs) on the part of the User.
3.14 If User agrees a fixed price with the Counterparty, then User is nevertheless entitled at all times to increase this price without the Counterparty being entitled in that case to dissolve the agreement for that reason, if the increase of the price ensues from a power or obligation pursuant to the law or regulations or its cause can be found in an increase of the price of raw materials, wages, etc. or on other grounds that could not reasonably be foreseen at the time the agreement was entered into.
3.15 If the price increase, other than as a result of an amendment of the agreement, amounts to more than 10% and takes place within three months after the conclusion of the agreement, then the Counterparty according to title 5 section 3 of Book 6 of the Dutch Civil Code is only entitled to dissolve the agreement by means of a written statement, unless the User is still prepared to execute the agreement on the basis of the originally agreed, or if the price increase ensues from a power or an obligation on the User under the law or if it is stipulated that the delivery will take place longer than three months after the purchase.
article 4 Right of withdrawal upon delivery of products to consumers
4.1 When purchasing products, the consumer, who does not act in the exercise of his profession or business, has the possibility to terminate the contract without giving reasons for 7 days. This period starts on the day after receipt of the product by or on behalf of the consumer.
4.2 During this period, the consumer will handle the product and packaging carefully. He will only unpack or use the product to the extent that this is necessary to assess whether he wishes to keep the product. If he makes use of his right of withdrawal, he will return the product with all accessories and – if reasonably possible – in the original condition and packaging to the entrepreneur, in accordance with the reasonable and clear instructions provided by the entrepreneur.
4.3 If the consumer exercises his right of withdrawal, the costs at the most are those of returning the goods.
4.4 If the consumer has paid an amount, the entrepreneur will refund this amount as soon as possible, but no later than 30 days after the return or cancellation.
4.5 If the consumer does not have a right of withdrawal, this can only be excluded by the entrepreneur if the entrepreneur has clearly stated this in the offer, at least in time before the conclusion of the agreement.
4.6 Exclusion of the right of withdrawal is only possible for products: a) which have been created by the entrepreneur in accordance with the specifications of the consumer; b) that are clearly personal in nature; c) which by their nature cannot be returned; d) that can spoil or age quickly; e) in the case of batteries, which are tested by us after return, where deviations are found with respect to the test report, in which case refund is not possible.
article 5. Suspension, dissolution and interim termination of the agreement
5.1. The User is entitled to suspend the fulfilment of the obligations or to dissolve the agreement if: – the Counterparty does not, not fully or not timely fulfil the obligations from the agreement; – after concluding the agreement User learns of circumstances which give good ground to fear that the Counterparty will not fulfil his obligations; – the Counterparty was requested at the conclusion of the agreement to provide security for the fulfilment of its obligations and this security is not provided or is insufficient; – due to the delay on the part of the Counterparty the User can no longer be expected to fulfil the agreement according to the originally agreed conditions, the User is entitled to dissolve the agreement.
5.2 The User is furthermore entitled to terminate the agreement if circumstances arise which are of such a nature that fulfilment of the agreement is impossible or, if other circumstances arise which are of such a nature that unaltered maintenance of the agreement cannot be reasonably made by the User.
5.3 If the agreement is dissolved, the claims of User on the Counterparty are immediately due and payable. If User suspends fulfilment of the obligations, he retains his rights under the law and agreement.
5.4 If the User proceeds to suspension or dissolution, he is in no way obliged to pay compensation for damage and costs in any way whatsoever.
5.5 If the dissolution is attributable to the Counterparty, the User is entitled to compensation of the damage, including the costs, which arise directly and indirectly.
5.6 If the Counterparty fails to comply with its obligations under the agreement and this non-fulfilment justifies dissolution, then User is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation. However, the Counterparty, due to breach of contract, is required to pay compensation or indemnity.
5.7 If the agreement is prematurely terminated by the User, the User shall, in consultation with the Counterparty, arrange for the transfer of work yet to be performed to third parties, unless the cancellation is attributable to the Counterparty. If the transfer of the work involves additional costs for the User, these will be charged to the Counterparty. The Counterparty is obliged to pay these costs within the specified period, unless the User indicates otherwise.
5.8 In the event of liquidation, (application for) suspension of payments or bankruptcy, of seizure- if and insofar as the seizure is not lifted within three months – at the expense of the Counterparty, of debt restructuring or any other circumstance as a result of which the Counterparty no longer can freely dispose of its assets, the User is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnity. The User’s claims against the Counterparty are immediately due and payable in that case.
5.9 If the Other Party cancels all or part of an order placed, the items ordered or prepared for this, plus any supply, removal and/or delivery costs thereof and the labour time reserved for the execution of the agreement, will be fully charged to the Counterparty.
article 6. Force majeure
6.1 The User is not obliged to fulfil any obligation towards the Counterparty if he is prevented from doing so as a result of a circumstance that is not due to fault, and neither pursuant to the law, a legal act or generally valid views.
6.2 Force majeure is understood in these general terms and conditions, in addition to what is understood in the law and jurisprudence, all external causes, foreseen or not foreseen, on which the User can not exercise influence, but as a result of which the User is unable to fulfil his obligations. This includes strikes in the company of User or third parties. User also has the right to invoke force majeure if the circumstance that prevents (further) execution of the agreement occurs after User should have fulfilled his obligation.
6.3 During the period that the force majeure continues, the User can suspend the obligations from the agreement. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement without any obligation to compensate the other party for damage.
6.4 If obligations from the Agreement at the time of the occurrence of force majeure are or can be (partially) fulfilled by User, the User is entitled to invoice these parts separately. The Counterparty is obliged to pay this invoice as if it were a separate agreement.
article 7. Payment and collection costs
7.1 Payment must be made within 14 days of the invoice date, in a manner indicated by the User, in the currency in which the invoice is made, unless otherwise stated by the User in writing. User is entitled to invoice periodically.
7.2 If the Counterparty remains in default in the timely payment of an invoice, then the Counterparty is legally in default. The Counterparty then owes an interest of 1.5% per month, unless the statutory interest is higher, in which case the statutory interest is due. The interest on the due and payable amount will be calculated from the moment that the Counterparty is in default until the moment of payment of the full amount due.
7.3 The entire purchase price is in any case immediately due and payable in case of non-prompt payment of the agreed term on the due date, when the Counterparty is in a state of bankruptcy, applies for suspension of payments or has been put in a curative position, when any seizure on the goods or claims of the Counterparty are made, and when this Counterparty dies, goes into liquidation, or is dissolved.
7.4 The User has the right to deduct the payments made by the Counterparty first of all from the costs, then the interest still due and finally the principal sum and the current interest.
7.5 User can, without being in default, refuse an offer of payment if the Counterparty designates a different order for the allocation of the payment. The User can refuse full payment of the principal sum if the vacant and accrued interest and collection costs are not paid neither.
7.6 The Counterparty is never entitled to set off the amount due to User.
7.7 Objections to the height of an invoice do not suspend the payment obligation. If the Counterparty has no right to appeal to Section 6.5.3 (Articles 231 to 247 of Book 6 BW) it is not entitled to suspend the payment of an invoice for any other reason.
7.8 If the Counterparty is in default or omission in the (timely) fulfilment of its obligations, then all reasonable costs incurred in obtaining extrajudicial payment are at the expense of the Counterparty. The extrajudicial costs are calculated on the basis of what is customary in Dutch debt collection practice, which is currently the calculation method according to “Rapport Voorwerk II”. If, however, the User has incurred higher costs for collection, that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any legal and execution costs incurred will also be recovered from the Counterparty. The Counterparty also owes interest on the collection costs.
article 8. Retention
8.1 All goods delivered and to be delivered remain the exclusive property of the User until all claims that the entrepreneur has or will have on the consumer, including in any case the claims mentioned in BW 3:92, paragraph 2, have been paid in full.
8.2 As long as the ownership of the goods has not been transferred to the Counterparty, the latter may not pledge the goods or grant third parties any other right thereto, except within the normal course of his business.
8.3 At the first request of the User, the Counterparty commits to cooperate in the establishment of a right of pledge on the claims that the Counterparty acquires or will acquire from its customers on account of the delivery of goods.
8.4 The Counterparty is obliged to store the goods that have been delivered subject to retention of title with due care and as a recognizable property of the User.
8.5 User is entitled to take back the goods delivered under retention of title and still present at the Counterparty if the Counterparty is in default with the fulfilment of his payment obligations or is at risk of payment difficulties. The Counterparty shall at all times grant the User free access to his premises and/or buildings for inspecting the goods and/or exercising the rights of the User.
article 9. Guarantees, research and complaints, limitation period
9.1 The items to be delivered by the User meet the usual requirements and standards that can reasonably be expected at the time of delivery for products intended for normal use in the Netherlands. The guarantee mentioned in this article applies to items intended for use within the Netherlands. When using outside the Netherlands, the Counterparty itself must verify whether its use is suitable locally and meet the conditions set for it locally. User can in that case set other guarantees and conditions with regard to the goods to be delivered or work to be performed.
9.2 If the customer has fulfilled all his obligations towards the entrepreneur, the entrepreneur shall provide a warranty on the new goods supplied by the entrepreneur, only for hidden defects, insofar and as long as the warranty conditions of its suppliers provide for this.
9.3 The guarantee referred to in paragraph 1 of this article applies for a period of 24 months after delivery, unless the nature of the delivery dictates otherwise, or the parties have agreed otherwise. If the guarantee provided by the User concerns an item that was produced by a third party, then the guarantee is limited to that provided by the producer of the item, unless otherwise stated.
9.4 Any form of guarantee or warranty will be cancelled if a defect arises as a result of, or arising from incompetent or improper use thereof, or use after the expiration date, incorrect storage or maintenance thereof by the Counterparty and/or by third parties if, without the written consent of the User, the Counterparty or third parties have made, or attempted to make, changes to the item, has attached other items to the item which were not supposed to be attached there , or has modified or processed in a manner other than the prescribed manner. The Counterparty is also not entitled to warranty if the defect arises due to or is the result of circumstances where the User cannot exercise any influence, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) et cetera.
9.5 The Counterparty is obliged to inspect the delivered goods or to have them inspected immediately upon the moment that the items were made available to him or the relevant work were carried out. The Counterparty must also examine whether the quality and/or quantity of the delivered goods corresponds with what has been agreed, and meets the requirements that parties have agreed on in this respect. Any visible defects must be reported to the User in writing within seven days of delivery. Any invisible defects must be reported to the User in writing immediately, but never later than within fourteen days after discovery thereof. The report must contain as detailed a description as possible of the defect, in order that the User is able to respond adequately. The Counterparty must give the User the opportunity to investigate a complaint.
9.6 If the Counterparty complains in time, this does not suspend its payment obligation. In that case, the Counterparty also is obliged to purchase and pay for the otherwise ordered items.
9.7 If a defect is reported later, the Counterparty will no longer be entitled to repair, replacement or compensation.
9.8 If it is established that a product or item is defective and has been filed timely, then the User will within a reasonable period after receiving it or, if returning is not reasonably possible, notify the Counterparty in writing regarding the defect by the Other Party, and at the option of User, replace or take care of repair or replacement fee to the Counterparty. In the event of replacement, the Counterparty is obliged to return the replaced item to the User and to transfer ownership thereof to the User, unless the User indicates otherwise.
9.9 If it is established that a complaint is unfounded, then the costs which arise as a result,, including research costs made by the User, will be fully at the expense of the Counterparty.
9.10 After expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and driving costs, will be charged to the Counterparty.
9.11 Notwithstanding statutory limitation periods, the limitation period for all claims and defenses against the User and third parties involved by the User in the execution of an agreement shall be one year.
9.12 Batteries are only given a warranty if battery management (BMS) has been used and delivered by BPath Energy.
article 10. Assembly
10.1 Assembly is carried out at a rate (ex VAT) of € 62.50 per (working) hour, € 0.45/km call-out costs and € 30.00 per travel hour. Personnel responsible for the assembly, can only assemble the material which is supplied by BPath Energy and/or the material included in the order.
10.2 The Counterparty must ensure that BPath Energy can perform its work without any disturbance.
10.3 If, due to a fault by BPath Energy, assembly cannot be arranged regularly and without interruption or has been delayed in any other way, BPath Energy is entitled to charge the Counterparty for the resulting additional costs at the rate applicable at that time.
10.4 All possible unforeseen costs are for the account of the Counterparty, in particular: a) costs incurred because the assembly could not take place in normal daytime hours; b) travel and accommodation expenses that were not included in the price.
10.5 The Counterparty must be present at the completion of the work and check that the work has been properly completed.
10.6 Complaints after departure of the assembly staff regarding the execution of the work or its duration will not be processed unless the Counterparty can prove that he could not reasonably have discovered a defect at the time the work was completed. In that case, the Counterparty must complain in writing to BPath Recycled Energy Storage within ten days of discovery of the defect and offer User the opportunity to repair a defect, if the report falls within the warranty period. The Counterparty will have to indicate what the defect is and when and how he has detected the defect.
article 11. Liability
11.1 If User is liable, then this liability is limited to what is regulated in this provision.
11.2 The User is not liable for damage, of whatever nature, caused by the fact that the User has assumed incorrect and/or incomplete information provided by or on behalf of the Counterparty.
11.3 If User is liable for any damage, the liability of User is limited to a maximum of twice the invoice value of the order, and at least to that part of the order to which the liability relates.
11.4 User is only liable for direct damage.
11.5 Direct damage means exclusively the reasonable costs for determining the cause and the extent of the damage, insofar as the determination relates to damage in the sense of these conditions, any reasonable costs incurred due to the defective performance of the User to meet the agreement, to the extent that this can be attributed to the User and reasonable costs incurred to prevent or limit damage, insofar as the Counterparty demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions.
11.6 User is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.
11.7 User is not responsible for damage if the Counterparty has purchased batteries without the necessary additional products, such as battery management system (BMS).
11.8 User is not responsible for damage if the Counterparty applies a battery charger that has not been set by the User.
article 12. Transfer of risk
12.1 The risk of loss, damage or depreciation is transferred to the Counterparty at the time when items are brought into the control of the Counterparty.
article 13. Indemnification
13.1 The Counterparty indemnifies the User against any claims from third parties that suffer damage in connection with the execution of the agreement and whose cause is attributable to the User other than the User.
13.2 If the User is held liable by third parties for this reason, then the Counterparty is obliged to assist User both outside and in law and to do everything that may be expected of him without delay. Should the Counterparty default on taking adequate measures, then User is entitled, without notice of default, to proceed to this himself. All costs and damage on the part of the User and third parties as a result thereof are fully for the account and risk of the Counterparty
article 14. Intellectual property
14.1 Unless agreed otherwise, the User retains the copyrights, as well as all other rights of intellectual or industrial property, on the designs, sketches, illustrations, drawings, models, software and quotations provided by him. These documents remain his property and may not be copied, shown to third parties or used in any other way without his explicit permission, regardless of whether the consumer has been charged for this. Consumer is obliged to return these items to entrepreneur on first request, under penalty of a fine of € 1.000,00 per day.
article 15. Applicable law and disputes
All legal relationships to which the User is a party are exclusively governed by Dutch law, even if an obligation is fully or partially executed 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 User’s place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the User has the right to submit the dispute to a competent court according to the law. Parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.
article 16. Location and change of terms and conditions
16.1 The last registered version, or the version that applied at the time of the establishment of the legal relationship with the User, is always applicable.
16.2 The Dutch text of the general terms and conditions is always decisive for the explanation thereof. 16.3 User is authorized to make changes to these conditions. These changes come into force at the announced time of entry. User will send the amended conditions to the customer in time. If no date of coming into force has been communicated, changes will take effect to the Counterparty as soon as the change has been communicated to him.