GENERAL TERMS AND CONDITIONS
Cloud Garden Natural Solutions BV
General Terms and Conditions Cloud Garden Natural Solutions
of Cloud Garden Natural Solutions B.V., established and with offices in Zwolle, The Netherlands.
These General Terms and Conditions have been translated from Dutch into English as a ‘service’. Errors are therefore reserved. The Dutch General Terms and Conditions are the valid version.
Chapter 1: General part
Article 1 - Definitions
In these General Terms and Conditions, the following terms are used with the following meaning:
1. General Terms and Conditions: these General Terms and Conditions.
2. Cloud Garden: Cloud Garden Natural Solutions BV, a private company with limited liability located at Telfordstraat 9 (8013 RL) in Zwolle, The Netherlands and registered with the Chamber of Commerce under number 77603087. Cloud Garden can be reached by e-mail via info@cloudgarden .nl, via the website www.cloudgarden.nl/en and by telephone on + 31 (0) 38 77 30 075.
3. Correspondence address: the e-mail address at which the Counterparty has indicated that it wishes to receive all information relating to the Agreement.
4. Services: all services offered by Cloud Garden that are the subject of an offer, quotation, agreement or other legal act relating to the Agreement between Cloud Garden and the Other Party.
5. Intellectual Property Rights: has the meaning as stated in Article 5.
6. Air purification products: all products that Cloud Garden has sold to the Other Party with regard to the air purification system, including but not limited to plants, planters and the hanging system for the planters.
7. Agreement: the agreement to which these general terms and conditions have been declared applicable, which also includes an order confirmation.
8. Parties: Cloud Garden and the Other Party.
9. Products: all products that Cloud Garden supplies to the Other Party under an Agreement, including but not limited to the Air Purification Products.
10. In writing: by post or by e-mail.
11. Counterparty: any party that enters into an Agreement with Cloud Garden or requests a quotation from Cloud Garden.
Article 2 - Prices, fees and payment
1. All prices communicated by Cloud Garden are exclusive of VAT and in euros.
2. The Other Party will pay the Air Purification Products upon delivery, unless the total invoice amount is higher than € 5,000 in which case 35% of the invoice amount will be paid by the Other Party to Cloud Garden prior to delivery and 65% upon delivery.
3. The Other Party will pay an invoice within fourteen (14) days after the invoice date.
4. Prices are exclusive of additional costs, such as but not limited to transport costs, travel and accommodation costs and installation costs. All additional costs are for the account of the Other Party.
5. If payment of an invoice has not been made in full within the set term, the Other Party will immediately be in default by operation of law, without further notice of default being required. From that moment on, the Other Party owes the statutory commercial interest and collection costs. The collection costs are fixed at 15% of the amount due with a minimum of € 500.
6. Without prejudice to mandatory law provisions, the Other Party is not entitled to suspend its payment obligations towards Cloud Garden. The Counterparty is also not entitled to set off payment obligations towards Cloud Garden against payment obligations of Cloud Garden towards the Counterparty.
7. Cloud Garden is, on the basis of its assessment of the Counterparty's creditworthiness, at all times entitled to demand security or full or partial advance payment for the fulfillment of payable and non-payable payment obligations. If and as long as the Other Party fails to provide the required security or full or partial advance payment, Cloud Garden is authorized to suspend its obligations under the Agreement.
Article 3 - Delivery
1. The agreed delivery terms are always indicative and cannot be regarded as deadlines.
2. Cloud Garden is entitled to deliver and carry out the work in parts, whereby each partial delivery or partial performance can be invoiced separately.
3. The risk for the Products that Cloud Garden delivers to the Other Party will transfer to the Other Party at the moment that the Products are removed from
Cloud Garden's warehouse for delivery ("Ex Works", as included in the ICC Incoterms 2020). All Products are at all times transported at the risk of the Other Party.
Unless the Other Party requests Cloud Garden in good time to insure the Products during the transport at the expense of the Other Party, Cloud Garden is entitled to transport the Products uninsured.
4. Export and import duties, clearance costs, taxes and any other government charges associated with the transport and delivery of Products by Cloud Garden, of whatever nature, are at the risk and expense of the Other Party.
5. Cloud Garden has fulfilled its obligation to deliver by making the Products available to the Other Party at the agreed time in its warehouse or the warehouse of a third party engaged by Cloud Garden. The delivery document and / or accompanying attachments of the carrier signed by or on behalf of the Other Party provides full proof of the delivery by Cloud Garden of the Products stated in the delivery document and / or accompanying attachments.
6. The offer by Cloud Garden to the Other Party for the delivery of ordered Products is equated with the delivery of these Products. If the Other Party refuses to receive the Products offered for delivery, Cloud Garden will store the Products in question for fifteen (15) working days after the date of the offer at a location to be determined by it. After the expiry of this period, Cloud Garden is no longer obliged to keep the Products ordered by the Counterparty available to the Counterparty and is entitled to sell the Products to a third party or otherwise dispose of them. The Counterparty nevertheless remains obliged to fulfill the Agreement by purchasing the relevant Products at the first request from Cloud Garden at the agreed price, while the Counterparty is also obliged to compensate Cloud Garden for damage resulting from the previous refusal of the Counterparty to pay the relevant To receive products, including storage and transport costs.
7. If, due to a cause within the risk sphere of the Other Party, it proves impossible to perform the work and / or to deliver the Products to the Other Party, Cloud Garden is entitled to store the Products at the expense and risk of the Other Party.
8. If the Other Party fails to fulfill its obligations after expiry of the period stated in Article 3.6, it is immediately in default. Cloud Garden then has the right to dissolve or terminate the agreement with immediate effect, without judicial intervention, by means of a Written statement, in whole or in part, without any obligation for Cloud Garden to pay compensation for damage, costs and interest arising from this. The foregoing is without prejudice to the Other Party's obligation to pay compensation for any storage costs, damage due to delay, loss of profit or other damage.
9. In the event of suspension of obligations by Cloud Garden due to a shortcoming on the part of the Other Party, the delivery time will be extended by the duration of the suspension.
Article 4 – Complaints
1. As soon as possible and in any case within one week after delivery of the Products or Services and before the further processing or assembly of the Products, the Other Party is obliged to check the delivered Products and Services for any shortcomings.
2. Shortcomings that were not visible at the time of delivery must be within eight (8) days after discovery or after they could reasonably be discovered, must be reported to Cloud Garden in Writing and with reasons by the Other Party.
3. If the Other Party fails to do so within the reasonable periods as stated in Articles 4.1 and 4.2 has reported any shortcoming in Writing and with reasons, then it is deemed that the Products delivered and Services performed have been accepted by the Other Party and comply with the Agreement.
4. It is not possible for the Other Party to institute a claim after one year has passed after the Services provided by Cloud Garden or the delivery of Products. A claim is considered time-barred at that time.
5. If a Product does not comply with the Agreement or contains a shortcoming attributable to Cloud Garden and the Other Party demands repair of the delivered Products, the Other Party will return the Product at its own expense to Cloud Garden to its registered address, so that Cloud Garden can repair the Product at its registered address. If the Other Party demands repair of a Service provided, the Other Party will do everything necessary at its own expense to give Cloud Garden the opportunity to restore the Services from its registered address. When it is practically impossible to restore Products or Services from Cloud Garden's business address, Cloud Garden has the choice of either repairing the Product or Service or paying compensation. To avoid misunderstandings, Article 7 applies to this Article 4.
Article 5 - Retention of title
1. All delivered Products remain the exclusive property of Cloud Garden until the moment at which the Other Party has fulfilled all obligations arising from or in connection with an Agreement (s), including claims with regard to penalties, interest and costs.
2. In the event that the Products have been delivered to a territory other than the Netherlands, then - if and as soon as they are on the territory of the country concerned - a retention of title also applies under Dutch law in addition to the retention of title referred to in Article 5.1. mentioned in Article 5.1 under the law of the country concerned, on the understanding that with regard to the
Agreement for the rest, Dutch law is exclusively applicable as stated in Article 10.
3. As long as the delivered Products are subject to retention of title, the Other Party may not encumber or alienate them.
4. If the Other Party is in default with regard to the payment of the delivered Products, Cloud Garden may at all times retrieve the delivered Products or request the Other Party to return the delivered Products. The other party is obliged to comply with the request of Cloud Garden.
Article 6 - Intellectual property rights
1. All (intellectual and industrial) property rights, including but not limited to copyrights and database rights, to all Products and Services or the results thereof, including but not limited to copy, models, drawings, designs, documentation, software, photographic recordings, films, information carriers, equipment and software (including object and source code), data and data files (including but not limited to the measurements and observations that are part of the Services), sensors, equipment, software, information carriers and other accessories that are the subject of and / or arising from and / or used in the fulfillment of the obligations under the agreement between Cloud Garden and the Other Party (the 'Intellectual Property Rights') are vested in Cloud Garden.
2. If the Intellectual Property Rights are not vested in Cloud Garden, they are hereby transferred by the Counterparty to Cloud Garden. The Other Party is obliged to cooperate in any way with the transfer of the relevant right to Cloud Garden upon first request.
Article 7 - Liability
1. If Cloud Garden is liable, Cloud Garden will only be liable for direct damage that has actually been suffered, paid or suffered by the Other Party due to a demonstrable failure by Cloud Garden in its obligations with regard to the Agreement.
2. Cloud Garden is never liable for indirect damage, including, but not limited to, trading loss, consequential loss or immaterial damage.
3. Cloud Garden's liability is at all times maximized to the total amount that Cloud Garden has invoiced to the Other Party in the year prior to the event causing damage.
Article 8 - Cancellation
- 1. Cloud Garden may prematurely terminate or dissolve the Agreement with immediate effect, without the need to send a notice of default, if: a. The Other Party goes bankrupt or suspension of payment has been applied for the Other Party;
- b. The application of the Natural Persons Debt Restructuring Act has been requested for the Other Party;
- c. The Counterparty is legally incapacitated, has been placed under administration or is no longer allowed to manage its money itself in any other way;
- d. The Other Party fails to fulfill an obligation under the Agreement;
- e. The Other Party ceases its business;
- f. A substantial part of the assets of the Other Party are seized; or
- g. The Counterparty must no longer be deemed to be able to fulfill the obligations under the Agreement, such at the discretion of Cloud Garden.
2. In the situations referred to in the previous paragraph, all claims of Cloud Garden on the Other Party become immediately due and payable, without the sending of a notice of default being required.
Article 9 - Other
1. In addition to what qualifies as force majeure on the basis of laws and regulations, the following events also qualify as force majeure on the part of Cloud Garden: non-fulfillment of obligations by suppliers, (late) delivery by suppliers, illness of personnel of Cloud Garden itself or a third party engaged by it, abnormal weather conditions, disruptions in water and energy supplies, strikes, serious disruptions in the (IT) systems of Cloud Garden or its suppliers, fire, floods, natural disasters, riots, war or otherwise domestic unrest.
2. Agreements between parties that by their nature are intended for this purpose, will continue to apply to the legal relationship between the parties after the end of an agreement, including but not limited to agreements with regard to intellectual property rights (such as Article 6), confidentiality (such as Article 9 paragraph 4), forum and choice of law (such as Article 10). The provision contained in the previous sentence applies to all ways in which the agreement could end, including but not limited to dissolution, cancellation and nullification.
3. Cloud Garden can transfer its rights and obligations to another company when (part of) the shares in Cloud Garden are transferred to a third party and to parties with which Cloud Garden forms a group as referred to in Article 2: 24b BW.
4. The parties are obliged to maintain the confidentiality of all confidential information that they have received from each other or from another source in the context of the Agreement. Information is considered confidential if this has been communicated by Cloud Garden or the Other Party or if this arises from the
nature of the information.
5. By entering into an agreement with Cloud Garden, the Other Party declares that it has received instructions (verbal or in writing), including possibly a manual with regard to the use of the Air Purification Products. The Other Party will use the Air Purification Products in accordance with the instructions.
6. If a provision from a quotation or agreement between the Other Party and Cloud Garden deviates from these General Terms and Conditions, the provision from the quotation or agreement will prevail.
Article 10 - Applicable law
1. Dutch law applies to the legal relationship between Cloud Garden and the Other Party and the choice of forum from Article 10 paragraph 2 below.
2. All disputes that may arise between Cloud Garden and the Other Party will in the first instance be settled by the competent court of the Overijssel district, location Zwolle, The Netherlands.